THE BARTON CASE.

Dominion, Volume 3, Issue 701, 29 December 1909, Page 5

THE BARTON CASE.

« DEBATE IN PARLIAMENT. EVIDENCE BEFORE'A COMMITTEE STRONG MINISTERIAL COMMENTS Among tho petitions repotted on in the House of Representatives yesterday was that of Frank Barton, of "Wellington, praying for compassionate allot anco r on account of injuries received through alleged negligence of a State coal mine wagon-driver. Tho Cdiumittco recommended that a compassionate allowance of .£330 should bo paid by tho Go\ornmcnt v to tho Pub lie Trustee m trust to invest tho same for tho benefit of tho petitioner, and in the event of tho agreement between tho petitioner and tho South British In-\ suraneo Company being handed to the Minister for Finance that the grant or investments* representing tho 'same lis paid over to tho petitioner. Mr. Davey (tho chairman) said that tho Committee was through having .h----sufficiont time at its disposal unable to call tho evidonco of onlookers After hearing the evidenco of novoral witnesses the Committee had como to tho conclusion that so far no case of neghgenco had been ptoved against tho State Coal Department It had come to tho conclusion that tho affair wos a pure acoident, and that both tho raotormnn of tho tramoar and tho driver of the coal wagon exercised all the care that thoj could when they saw that an accident was inovitablo. The Evidence. , ' Ho proceeded to road tho evidence, of which the following is a summary:— Frank Baiton, the motornian, in Mb evidence, said that ho decided l as soon as ho came out of tho hospital that ho would bring a case against the Crown for compensation, as he''considered tno..'£3oo that ho would got from his omployors under tho Workers' Compensation Act would not compensate him for the injury and suffering ho had gone through. Ho took legal advice before deciding to proceed against tho Crown, and was strongly advised, in view of the pvidonce ho >had, to go on with tho case. His solicitor said there was only one doubtful point, and that was a technicality in connection with the Crown Suits Act When the case came on, this point was decided against him, and he could.go no further. ',Ho had been strongly ad"ised by two firms of solicitois in the toim to take the case at common law. Tho I accident had cost him .£IOO, including pcdical expenses. Agrcemont With!the Insurance Company. When he decided to take action, he went to the insurance company and made a claim, by which they were to allow him £150 if the action failed. That was to pay him the whole of his expenses. His solicitor advised him to accept the £150, on tho ground that he had a very good case against tho Crown. ' The Chairman: What amount of money have you received altogether from the ' City Council, outado of compensation?— I have boon working a few months now. i I havo not reckoned it up. I have been i earning £2 10s. a week in temporary light ! employment Bid tho City Council pay you anything while you were ill?— No. 1 Did you apply to tho City Council for any compensation, or for a compassionate ' allowance, or a lump sum?—No, I did not consider I had any claim upon them. It was my intention, perhaps, to do so lator, when, I saw how I got on. \ ' ' Whon you accepted 'the £150 from the insurance company, did you sign a clean receipt?—l signed a clean receipt, and in the event of tho Government paying mo any compensation they were to bo refunded the .£l5O Iu reply to Mr. Radcliffo, departmental officor, Barton said ho. sued, for £1500 -fn the Supremo Court,'MY.'Wilford putting ■ in tho claim for him. Mr. Eadcliffo produced a lotter 6cnt by ' Messrs. Skerrott undAVylic, tolicitors, to the A tlornev-General, undor date Julio 22, 1908, stating that they were acting for Barton, and that he was prepaicd, without prejudice, to accept £200 foi general damages, loss of wages, and medical expenses. Witness said ho went through tho matter with Mr. Lynch, of the firm of Messrs. Skerrott and Wyho, but ho nover understood that tho letter was to ba:sorit. Barton also stated that if as tho result of his petition, to tho House, ho was granted a sum of money by the Crowii, ho would havo to pay £150 out of it to • tho insurance company. Ho was legally bound to do so. Ho nad accepted those . terms at the advice of Mr. ton, who was Mr. Wilford'a partner. This was after tho Court had decided that he had no • case. • Mr. Newman: Did you part with your ■ legal rights when you accepted the £150? . -Yes, 1 had to do it Onco thoy came to terms, my claimi was withdrawn, because, under the Act, ono is not ontilled to tako compensation from two parties. An Ex Gratia Allowance. Ernest Edward Hammond, representative of tho South British Insurance Ji° m PW» Wellington, said in his evidence that iho whole matter was put before his directors, and thoy agreed to an application by Barwn, as ho had no money to paj tho expenses to go to Court. Iho sobcitor3 loiused to tako his claim Colore tho Court without getting tho cash. It was agreed that the company would give him £150 on behalf of tho City Council, which was a yeiy valuable connection worth £4000 a year. Witness told Barton that it was purely ex gratia, i Ho realised tho position, and ultiniatcK J-.mpcd at it. It was agiecd that if B»rton got a large sum, it was only fair that tho company should tako a jefund. , I no most they asked for was £150,.but »| might havo boon only £10. It was i Mr, Levi s suggestion, and no member oi > wo company's staff saw Barton again. Had they refused to pay him, he would havo got nothing whatever. It was through tho Auckland head office's generosity that he got tho £150, but Jhoy thought it would como back to them in another form. They thought Barton would got his reward from tho Couit, and thoy were supplying him with funds to go to Court; " , -n Witness further said that under agreemont, if Barton secured a compassions ate apount from the Crown, ho would have to pay back £150 to tho companv. The ox gratia payment to Barton w as inado f to retain the City Council's business, und j not Barton's interest at all Theso ex f gratia payments were often made uudei , certain circumstances. If Barton only 1 obtained £200 or less ,from tho Crown, s tho company would not expect to get tho • £150 back, though it would bo legally cn- ! titled to it. Witness thought tho arrangement waa a collective,thing between tho Town Clerk; himself, and Barton, " and all who took any interest m Barton' 6 s caso. Barton had lost his claim to coni--0 ponsation from tho City Council by lot- . ting three months elapse. The council was paxticalaily anxious to pay. Remarks by Mr, Wilford. • Mr. Wilford (Hutt) said that tho whole of tho evidonco which could bo obtained would show that there was ncgligonce on tho part of tho driver of tho wagon. Ho had no doubt if Barton had won in legard to tho point as to whether tho wagon was a public work ho would ullir niately have been awarded a largo sum - by way of damages Tho whole of Bar--1 toil's costs in connection with tho svit' f which he brought on tho point in question totalled only £20. Until thai day r ho did,not know that Barton had gone v from his firm to another firm, which e wrote to tho Dopartmont 6ajing that o Barton would accept £200 in full settle--0 raent of his claim. The position was e made clear to Barton nil tho way through r by his firm. Any lawyer would at onco f admit that the document which Barton gavo the insurance company under J whioh ho promised to refund tho £150 1 which ho had received from it if ho got . n compassionate ullowanco from tho Gov- , ornment was not worth the paper it was written on. Ho could not see why the Crown Suits Act was waived in the cose of tho Farmers' Distributing Company ' and a similar request m regard to the i Barton caso was declined. "Like Grim Death," Mr. M'LareiT (Wellington East) declared that ho was a passenger on tho tramcar at tho timo of the accident. The s coal wagon was driven first straight toi wards the line, then it was slopped, ( vnd 1 afterwards, went along • on tho nngk \e ' soon Us the' motornian saw an indication

of a change m tho lino taken by lh« driver of tho wagon, ho at onoeiommed down his brake and hung on like grim death. Tho Committee Ind como to tho only recommendation which it could reasonably ha\o arrived at. Mr. Wnght (Wellington South) submitted that tho insurance company had no donro to do any wrong to Barton. Ho ho!, been mfoimed that tho company would not mako iny chargo against BarI ton in respect lo the document v.hich he gave it (Hear, hear) Mr. Luko (Wellington Suburbs) con-*> tended that the City Counoil had acted quite fairly in tho matter. Ho had tho assurance of tho manager of the insurance company that it \iould not call on Barton for a rofulill. ' Hon, R. M'Kcnne: After ho h&s bocn found out. Mr, Luke: And I repeat that tho Cttj Council acted honourably and lognlly 1 ' Mr.' H'Konzio: No. ■ • ' -V Tho Insurance Company and thi Council, * ' Mr. C H. Taj lor (Thames) eaid thoovidenoe thu'w a very lurid light on soma of- tho u'othorte employed by insurance .companies Mr. 7. Brown (Napier) held that an ai rangoment had been made by tic company with the council to rid the council of its just Bability. The council should bo made to pay Barton what ho w/a legally entitled to If tho council v. anted to do the propci tiling it would draw ap a choquo covering its liability without delay. Tho Hon. E. M'Konno (Minister for Mines) said tho ovidenco showed that tho South Britisli Insurance Company and the Citv Coiporntion had conspired to- , ' gethcr to prevent Barton taking a iuso before the Supremo Court, under iiuo common law. It oame cut boforo-jtho Committee that tho State coal lorry was >: run into by a tramcar, whilo tho lorry was crossing tho tram-line, and that no blame attached to tho dnvcr of. tho lorry. Why did tho CMy Corporation and the South British Company tako a document from Barton and givs him to un- * derstond that if ho got any money from the Government bo was to pay £150 back. Would cither of tho hon. members vtho wore members of the City Council, explain ""that? Was it done for nomine? , ' Ho supposed they had to pay to jut tho | dooument drawn up. It was purely' and i simply a conspiracy, (Voices: Shame, 1 shamol) He was glad that daylight had boon thrown upon the matter. Every mombei of the Committee know tho facts w ore as ho had stated, and if ever thero was a proposal to repeal or amend tho CrownSuits Act, in the manner asked for by 1 , v , sorao, ho would undorteko to say that no member of tho Comnutteo who hoard the, evidence would vote for it Ho had never heard of a more deliberate conspiracy. N The only, remedy that was really re-, quirod was an amendment'of tho law that would enable Barton to go for the, City Council at oommon law, ajid he ventuied to say that if that wore done, Barton would got a good doal of money', out of the corporation. He would Bajf s nothing about tho legal Dspect of thai> affair. No doubt Mr. Wllford'e part-" v ner gavo tho l»st advice ho could, but ho was misled. Tho caso 6howcd the Wellington City Council in euoh an undesirable light that ho was not anxious v to follow it any further on the present occasion. 1 Views of Mr. Hordman. ( Mr, A. L. Herdman (Wellington North) ' said ho could hardly let the statementa of the Minister go by without 6omo reply. There was not Ji scrap of ovidonce tor tho Minister's statement that there had been a conspiracy between tho City Council!and the South British Insurance Company to defraud a> poor unfortunate man of his rights. Tho statement that thero was an attempt to rob tho taxpayer ( was also absolutely without foundation. > Ho was surpribod that the hon. gontl9- r man, in his responsible position, should'' go out of hia way toj throw mud at the corporation, which s\/ far as ho (Mr. v Hordman) could understand tried to deal perfectly fairly with Motorman Barton, Thd.mombor for Hutt had spokon lucidly and fairly, and ho quite agreed with what he nad said about tho attitude taken by Lis partner. For fair dealing and' honpurablo conduct no mombcr fat the legal proiossion atood higher than Mr. Wilfoid's partner. ,The uMortuna.te man, Barton, was injured by\a steam lorry, the property; of the Government, Mr. M'Kenzie No, ho was' noti ' ' Mr Herdumn The hon, gentleman docs not understand tho facts, After repeat-' ing his last statement, Mr. Herdman went on to say that the insurance com-\ pany uiadc an cx-gratia payment to Barton, and said that if he obtained com- > ponsation from tho Government they should have a refund. It seemed to him that no blame could be imputed to the ' company or to tho City Corporation. The company was only a business concern, and was bound lo look after its shareholders. It was unfortunate that tho Go\crnmcnt could no( see its way to alter tho law so as to'placo its business concerns on tho sauio looting as ordinary • business concorns.i > "A Menace to the Community," If any trading concern of tho Govern- * ment was to bo specially protected, it v could becomo a menace to tho com-', mumty. Tho injury done to Iho Farmers' Co-operative Distributing Company was a caso in point A State trading' concern could drivo another business out* of tho city. Mr. Dayey (in reply) said that whenMr. M'kenzje 6aid thero was a conspiracy ho inußt havo been referring to that pottion of tho ovidenco given by , the manager of tho eompany, to tho effect that Barton wanted to go to Court m ordor to fight his rights, and tho company gavo him tho £150 to do,so, ' i nlso that ha thought tho como irom tho town clerk and barton. The • £,150 was not paid over to Barton until' . alter ho had exhausted his legal remedies. , Had Barton got compensation from the ' Crown ho would undoubtedly have had to* pay it back. Tho lompany thought, the' ' ' dooument was perfectly valid, ft came out in ovidenco that tho car actually ran into tho vingbn. '' i ,- ,'j' The motion that the, report should bo i rolened to tho Government for favour, able consideration was then agreod to, I Warm Remarks by Prime Minister." , Upon' a motion that Iho ovidenco hV 1 laid on the table and printed, '■ , 'Ilie Prime Minister said It would be tho duty of the. Government vo look into tho wholo matter, 'iho City Council ought to have insisted on Barton Rolling 1 tho full amount to which he was culitlc3 Under tho Workors' Compensation Act, viz., £JOO. If tho insuranco company imagined that it was going to got any of tho money which was being provided on tho .Estimates, it vyas making a, groat ' mistake. 11 tho £300 wero not paid to Barton by noxt session, ho would legist late on the matter. There had been «" soi.ii-privato arrangement known to some, ono in the corporation, under which an agreement was made that in tho event of Barton getting a compassionate allowance,' there slioald bo a< refund to'tho insurance company. It was ah outrageous proposal, and not creditable to thoso concerned. The Government was not going i' to allow any deductious from iU grant to repay an insurance company for an honourable obligation,which it had un- , dortaken. >,\ > ' STATEMENT BY CLERK, On being questioned >as to tho preciso treatment metod.out (o It/torman Bniton after the unfortunate'* col- x lision botweon the State ODal lony-and ' tho tramcar he was driving, the 'Town 1 Clerk (Mr. J. li. Palmer) btaled 1 that Barton, on boing injured, was, in the ordiunry way, entitled to tho insurance , money, providol for such a caso, for w Inch the Citjn Council hod cover 'with tho South British Insurance Company. , Tho council realised, however, that-the circumstances voro oxeopbonal, and ( that the Goverumen' should be tisked toirqmponsato him for the injuries rcoii'red, , but, recojuisini; that a sick man Uuld not stand Out ■ against the Government (which was piepaicd to fight tho olaim). it was decided to paj Barton tho full ' ainonnt ho was entitled to m any caso, and that amount (£l5O, Mr. Palmer thought) was piid over. Furthor, Barton was retained on tho staff on full . salary, and was still on iho stuff, and * still in receipt of his full salary, though . doing less lcspjTviiblo work. The rathor unfortunate thing was thai when tho insurance compsny paid over tho money a proviso was a.hchod to Iho effect that if compensation was recovered from the Government, the money should bo refunded to the company—an ordinary business safeguard against compensation buiug paid twice over. But ovon at the \ timo it was mehboneJ that it was not likely thnt tho company would be too exacting over thfe matter uf \ha refund if tho Government did nay. l