CLAIM FAILS

Dominion, Volume 22, Issue 131, 27 February 1929, Page 3

CLAIM FAILS

DELAY IN BRINGING ACTION

In the Supreme Court yesterday, before Mr. Justice Herdman, Walter Harold Mill, a labourer, claimed from the Wellington City Council £5OO damages for an accident which occurred on the Point Halswell Road in August, 1927. Plaintiff alleged that he was injured through falling from a motor-lorry which had been negligently driven by a council employee. In the statement of claim it was contended that defendants had admitted liability in respect of the accident pursuant to the provisions of the Workers Compensation Act, and compensation had in fact been paid, totalling £22 Is. 2d. Thinking he bad fully recovered, plaintiff settled his claim for compensation, but without legal advice. He further claimed that his injuries subsequently proved to be more serious than he realised, but the defendants refused to recognise any further claim for additional 'compensation, on the ground that his claim was barred through lapse of time. Mr. P. J. O’Regan, who appeared for plaintiff, admitted that plaintiff had not complied with section 353 of the Municipal Corporations Act, which required that action should be taken within six months after the cause thereof, and that one month’s notice must be given in writing. Counsel submitted that there was an excuse for the delay, for plaintiff did not at first realise the nature of his in--juries, and also did not want to get the lorry driver into trouble. The defence was to the effect that plaintiff had accepted £22 in full settlement of the claim, and that defendants were not liable for further compensation. Further, fhe plaintiff had fjiled to give notice of his intention to take proceedings within six months, and he had no reasonable excuse for doing so. Mr. J. O’Shea, city solicitor, said that he was handicapped to a certain extent owing to the death of the man who had been in charge of the work on which plaintiff was engaged, and because the driver of the lorry did not remember the accident. , , After evidence had been heard, His Honour said that he did not think it necessary to determine the case on the facts. He thought the case a typical one in which the Court should not exercise its power to waive the non-compliance with the Municipal Corporations Act in regard to notice being given within six months of intention to take proceedings. Evidence had been given that the plaintiff had resumed work, and had accepted compensation, evidently intended to be in full settlement of all claims he might have, from the insurance company. Plaintiff had said that he did not know what he was signing. But, continued His Honour, it was difficult to believe that-the nature of the receipt was not explained to him, and, moreover, being an intelligent man, he was not likely to attach his signature to it without being fully aware of its contents. Section 353 of the Municipal Corporations Act was .designed to ensure that persons having claims against local bodies should make them promptly and thus enable the local bodies to investigate the circumstances of the claims. In those circumstances, and having regard to the facts, he would refuse to waive the non-compliance with the Act. .The plaintiff’s action must, therefore, fail.