SUPREME COURT

Dominion, Volume 1, Issue 225, 16 June 1908, Page 4

SUPREME COURT

CIVIL SITTINGS. j LIABILITY FOR AM ACCIDENT, BROWN v. HEENAN AND TP,OUIE, LTD. NEW TRIAL GRANTED.; The judgment delivered yesterdar by Mr. Justice Chapman with respect to tip application for a now trial of tho aetioi botwccu Tleber Brown and Hoonan and Froido, Ltd., is of considerable interest to omiloycre'of labour. I Pliiiutiff, who is a labourer by ipenpation, sustained a broken leg and otlnr injuries whilst in the employ of tho defoliant company, who were tho contractors ftr tho supply and installation of tho niacliiniry iu connection with tho now destructor at Clyde Quay. This claim for .-CIOOO damages was heard at tho February sittings, before a'jury of twelve, which brought in a vciiiet in his favour for £000. i

His Honour said that it was allowed by plaintiil and his witnesses that j'e was required to stand on a cross-beam >r strut in order to assist in the work of lowering a boam; that the strut was insufliecutly fixed lor the purpose for which it wa! originally designed or intended; that it fas to the knowledge of the defendant, conpany used, and v.'»s the only means availimo to the plaintiff and other workmen tc stand on when performing the work"; and 'that plaintiff met his injuries as a result tf the strut giving way through being insufficiently fastened. There was an alternatip cause of action, based on the Employers' Liability Acts, setting out the same facts, and also alleging a delect in the condition o) tho ways, works, and plant which had' ntf. been discovered owing to the ncgligcncci of tho defendant company's suporintendiig engineer, and foreman, who had been entrusted with the duty of seeing that they wejo in proper condition. j The work of lowering the bean was, His Honour pointed out, directed )jj the fore-' man, Mr! Taylor. A man named Jones wont up on a principal. Plaintiff sbod on the heater. His immediate object |wa3 to get into the hands of Jones a liglt lino with which to send up a light block ;and tackle. Tho evidence of Taylor was that this might properly and easily have been dole by plaintiff (who had been a sailor) throwing it from where he stood 011 tho heater to Jones, who was only fifteen foot above lim. ■ Plaintiff, however, said that the heai'y ironbart beiyn was in the way of this, slid that ho found it necessary to go 011 the beam. To do this he stepped on the strit, and this gave way. There was contradictiry evidence about the proper way of sendiig the light lino up, and about tho necessity for using, tho strut in so doing. 'J'hero \\?s also contradictory evidence as to the crdcr-giving. Taylor said, that >it was'a parteular order to throw up the rope; on the ithor hand, plaintiff ■ said that it was a geicral one to get tho boam down. Taylor hal given the order, and had gone through a door-opening near where the strut rested oil the ledge, to get another man to assist in ;bo hoisting when ho heard the plaintiff -fall. j Upon tho question as to whether ladders Avoro available, a good deal of confused aid perhaps contradictory evidence had also been given. Tho Court thought that there «cro ladders and other appliances which mighi have been used in connection with the work if tho foreman had thought lit to order that they should be used. Jones, who tad reached the principal, had climbed up tlicio by means of a strut similar to the one'' in question, presumably that which supported the next colifmn.

The difference between the claims at common law and that under tlio statute was, His Honour continued, explained to the jury. It was admitted by counsel on| both sides •that the verdict was. one for tho plaintiff on the count at common law. He could not sec how the conclusion could he resisted that the verdict (given-depended on proof of negligenco in one or more of the defendant company's servants. Tho superintending engineer or his assistant hod directed the pitting up of tho. strut which was admittedly dono properly in tho first' instancij. If the unknown parson who removed the rope was, as must bo presumed, .one of the defendant's employees, it wig a negligent act. : If not it was tho unlawful intervention of a stranger. , If there was negligence in tho way in Which plaintiff was employed, it consisted of (a) failing to re-soenro tho strut, (b) failing explicitly to order plaintiff to stand on the heater, (c) ordering or permitting him to use an unsafe strut, (d) failing to make a secure way by ordering a ladder to bo procured, (e) failing to order, plaintiff to proceed by a different route; or some combination of theso acts or omissions. ( It was suggested inter alia,' that looking at the positions of tho various officors of the defendant company, they could not bo classed as fellow servants of the plaintiff, but that their acts and omissions should be treated as those of tho principal. This argument was met long ago in the House of Lords in Wilson v. Merry (L.R. (1) lI.L. gc, 326), whero the negligent actor was a foreman of works in a coal mine, and repeatedly in other cases down to liedley v. The Pinknoy and Sons Steamship Company (1891 A.C. 222) where the negligent servant was the master of a ship in supreme command, tho person injured or killpd being a common sailor. The Court did not think it possiblo to distinguish betwoen cases of that class and this case, or to put the superior officers of-this company on a higher piano than a captain in exclusive command of a ship. His position as "the most authoritative of agents" was discussed as an illustration in M'lirido v. Brogden and others (3 C.A. 271). In that case tho person whose negligence brought about the result complained of way in very much the same positiori as tho foreman here, and, if the Court had no other authority to guide it, it should bo bound by that decision. Counsel for tho plaintiff had argued that tho case really belonged to a different class, and cited \Yilliams v. The Birmingham Battery and Metal Company (1899 2 Q.B. 338) as governing it. In that case a workman was afraid to use the only way provided for workmen to descend .from an elovated tramway,' which was by climbing in a manner ous to a man of his years though used by othor workmen. In attempting to Slid a j. way of his own'ho fell and met his death. ; That., was a case of an absolutely insufficient 'and unsafe, but permanent, appliance being provided by the employer, and no question of the conduct of a servant aroso. Hero tha whole case depended on tho proof of tha negligence of a servant in conducting a casual incidental operation. On behalf 1 of plaintiff it' had* also been suggested that if tho 'Court found that tho verdict could not be sustained.as a verdict at common law, it might be reduced to an amount at which it mijjlit bo sustained under the Employers' Liability Acts. The Court regretted that this could not be done. There was evidence that tho plaintiff was capable of earning nino shillings a day. It was stated ■in _ arg'umpnt that casual labourers like plaintiff,'worked, under an award of the Arbitration Court; which limited their ordinary working hours to forty-five per .week, and gave them overtime rates whenever they happened to-be employed longer. It would be the function of the jury and not of tho Court to determine how many, days in tho year a casual labourer would bo likely to bo employed. Assuming that the jury woro on-, titled to litid that.,tho plaintiff might bo considered as earning nine shillings a day throughout the year the amount awarded was hcyoiul- tho amount recoverable under tho Employers' Liability Acts. The Court was not, however, entitled to arrive at a judgment by making an assumption that tho jury had so found when there, was nothing to show that they had considered the. question. Counsel for the plaintiff had furthor nuggested that the issue as to damago alone should bo submitted to another jury. This, if it could be done at all, could only bo dono if thoro wore clear findings 'amounting to a verdict under tho Emplo.vpr.s' Liability Acts, which was not the case. In tho circumstances the Court had no course opqn to it but to order a new trial generally. The costs of tlie first trial would abide the event of tho second. The sum of eight guineas for tho costs of this motion was allowed in I the action to the defendant company.

Mr. Skorrett, E.C., on behalf of tho plaintiff, asked that tho case should be sot down for. hearing at tho current civil sit-' tings.' Air. Menteath, for tho defendant company, raised no objection. His Honour said that ho would add the case to the list, but ho was doubtful whether it could come on for trial at tho present sittings. There were, ho continued, a number of cases left to be dealt with, and it was not quite certain whether they could bo hoard on the dates fixed for thein. A jury would bo empanelled on June 29, when lie and Mr. Justice Cooper would both bo iii Wellington, j There were a number of compensation cases for hearing when he returned from Blenheim and Nelson. CE.AIf/1 FOR COMPENSATION. USHER v. TIIIS FEDERAL STEAM NAVIGATION COMPANY. COURT .AWARDS PLAINTIFF £700. Mr. Justico Chapman also delivered judgment in the case in which a stevedore named Arthur John Usher claimcd £1501) damages from tho Federal Steam Navigation Company in rcspect of injuries susiainc-cl by liini whilst working on the s.s. Surrey. His Honour said tho parties had come to an agreowent under which, for the purposes of tho case, tho defendant company admitted full liability, conditionally upon tho damages being assessed by the Court without ihe assistance of ;v 'jury. lie (His Honour) would have much preferred if tho damages had been left for assessment to a jury, although tho right of the-parties to conio to such an agreement could bo denied. Plaintiff (who was 41 years" of age) was a steady man, and had frequently worked as leading-man in a _ stevedoring gang, his average earnings being £3 per wees. On account of certain defects in tho appliances on which ho was working on tho s.s. Surrey he fell down the hold ft distance of 42ft. &onieof his injuries had been cured, but at least ono remained which would havo a permanent) effect upon his earning power, lor the medical evidence went to show that the strength of tho grip of his right hand would never be restored to tho normal condition. There wore other occupations open to him, such as those of a flagman or u crossing-keeper, but they wero not always easily procured, and similarly, although ho would bo capanlo of taking a. position as foreman stevedore, such' positions wero only occasionally obtainable. There was medical evidence to a certain extent of perversity on plaintiff's own part, preventing a more complcto recovery. This Was duo presumably to want of proper judgment to enable him to appreciate tlie advice given him. Not much weight could be attached, to that circumstance. 1 Plaintiff's actual loss of wages to tho date when it was considered ho would be earning wages again was about £190, and his expenses might be put down at about £50. His Honour thought that ho was entitled to consider what damage's lie had known juries to award for permanent injuries, though, as no two cases were alike, lie was not bound by such lindiugSj and ought not to allow a' decision of this sort to be governed by any hard and .fast rule. He was also entitled to consider tho groat facilities now offered to a man who received a lump sum by way of damages for investing it in an annuity which would secure him Eomo compensation for loss of wages, not merely to tho end of a period up to which ho could presumably earn tho higher wage, but to the ond .of his life. Damages should, in his opinion, be on a fairly liberal scale in cases such as the one in question./ Taking all tho ciroumstauces into consideration, he should award tho sum of £700 with costs as per scale; witnesses' expenses o.nd disbursements to be fixod by tho registrar.

Mr. Wilford appeared for tho claimant, and Mr. Skerrett, K.C., for tho respondents. IN BANCO. ALLEGED ILLECAi. DISTRAINT. LESLIE v. • STEVENS. . ■ MOTIONS FOR JUDGMENT. . Tho case between Camilla Leslie (plaintiff) : and Ellen Stevens (defendant) was further considered in Banco by Mr. Justice Chapman yesterday. This was an action in which plaintiff, who is a private boardinghouse-keeper at Oriental Bay, proceeded against defendant, v.ho is hor landlady, for £501 damages for alleged illegal distraint for rent. It will bo remembered that Mr. Justicc Chapman directed tho jury in this case to find for tho plaintiff, reserving leave to the defendant to movo to entor judgment for tho .defendant on .certain legal questions, and that tho jury assessed tho damages at £75. Mr. Myers, who (with Mr. Toogood) appeared on behalf of the plaintiff, formally moved for judgment for the amount assessed. ■ Mr. Gray, for the defendant, moved that judgment be entered for'tho defendant upon thq ground thfit tho statement of claim and the ovidenco aVlduccd by tho plaintiff in support thoreof disclosed no cause of action against defendant, ' and upon tho other grounds mentioned in tho statement of dnfenco and relied on by "defendant at the trial; and, iu the. alternative, counsel moved that tho verdict 'of tho jury bo set asido and a new trial ordered upon the ground that the damages assessed wero excessivo. Mr. Gray submitted that notwithstanding a provision in the lease, to the effect that if tho rent should be in arrears for seven days defendant might distrain the common law right of tho defendant to distrain immediately the reilt became duo was not taken away. In support of his contention ho quoted tho dictum of Lord Coke. 1 . .

Mr, Myers, in reply, cited the decision of Mr. Justice Williams in the case of Fiulinsou v. Keid, which lio submitted was directly in point. His Honour reserved his decision. IN DIVORCE. MARRIAGE DISSOLVED. TWO DECREES ABSOLUTE MADE. Mr. Justice Chapman heard tho divorco notion, Edward M'Callum Blake, of Wellington, architect (petitioner) v. Mabel Charlotto Blako (respondent) and Norman Jaggar, of Wellington, insurance clork (co-respondent), in camera yesterday morning. Tho proceedings wore not- opposed, and His Honour granted a decroe nisi, also tho custody of tho childron, to tho petitioner, with costs on the highest scale against the co-respondent. Mr. Wilford appearod on behalf of tho petitioner, whilst Mr. Johnston watched the caso on bolmlf of tho respondent and Mr. Blair on behalf cf tho co-respondent. On tho motion of Mr. Wilford, a decree absolute) was, mado in the. action, Eliza Thomson (petitioner) v. David Thomson (respondent). Custody nf tho infant child of tho marriago was also granted petitioner. A similar order was made on Mr. Wilford's. motion in respect of the action, Sarah Barnes (petitioner) v. Harry Barnes (respondent)/ and petitioner was granted tho legal custody of the child of the marriage. IN CHAMBERS. ACTION SETTLED. The case between Dalgoty and Co. (Mr. Foil) and Frederick Pcarce, farmer, of Featherston (Mr. Wilford) was mentioned in Chambers yesterday. This was a claim for £003 13s. lid. upon an account current between tho parties for balanco of money lent, stock sold, and money paid, and interest thereon. Mr. Wilford stated 'that tho defendant now submitted to judgment. His Honour entered up judgment for plaintiff with costs according to scale, and tlireo guineas costs of the motion.