WIDOW’S APPEAL

Dominion, Volume 27, Issue 16, 13 October 1933, Page 11

WIDOW’S APPEAL

Claim Follows Husband’s

Death

ACCIDENT AT WAITAKI The Court of Appeal was asked to consider in a case which commenced yesterday afternoon whether persons working under co-operative contract with the Government were servants o£ the Government or independent contractors. The appeal arose out of a decision of Mr. Justice Kennedy in a case in which Minnie Solomon, widow, Timaru, sought to recover £2OOO damages from the Crown following the death of her husband, who was killed by accident at the Waitaki hydro-electric works on May -0, Ho— Legal argument was proceeding when the adjournment until this morning was taken. Mr. P. J. O’Regau appeared for appellant. and Mr. W. D. Campbell, Crown Solicitor, Timaru, with him Mr. J. Prendeville, for the Crown. The Court comprised the Chief Justice (Sir Michael Myers), Mr. Justice MacGregor. Mr. Justice Ostler and Mr. Justice Smith. The facts, as led by Mr. O Regan, were that appellant’s husband, Edwin John Solomon, was killed by accident at the Waitaki hydro-electric works on May 20, 1932. The widow subsequently commenced proceedings, claiming £2OOO damages, alleging that Hie accident, was due to negligence on the part of Alfred Henry Rawsou, a fellow-worker, who was one of the party to which the deceased belonged. Solomon was working with a number of others at tho bottom of a deep excavation, hi,B work being to fill trucks with spoil, and these trucks were hauled up a steep face for about 75 yards, on top of which Rawson and another man would receive the trucks as they arrived, one pushing them further* on to the tip-head while the other secured an empty truck to the cable and sent it down the incline. On the occasion in question the truck was not properly secured to the cable, with the result that it rolled down the incline ami. coming into contact with Solomon, killed him instantaneously. The claim for damages was heard before Mr. Justice Kennedy and a jury of twelve at Timaru on February 2 and ,3 last, when the jury found that the accident was due to Rawson s negligence, and awarded £l4OO damages, £9OO for the widow and £5OO for her child.

No evidence was called for the defence, but Mr. W. D. Campbell, who appeared for the Crown, raised two nonsuit points: (1) that there was no evidence of negligence, and (2) tho party of co-opcrative , workers to which the deceased and Rawson belonged were independent contractors, and there being no contract of service, there was no cause of action and the Grown was not liable.

Mr. Justice Kennedy took time to consider his decision, and in tho course of a lengthy reserved judgment delivered on March 30 he found that there was evidence on which the, jury could find negligence, but on the second point he agreed with counsel for the defence that the party to which the deceased belonged were independent contractors, and hence that the verdict could not. stand. From this decision the widow appealed.

Mr. O’Regan was addressing the Court when the adjournment was taken.