COMPENSATION FOR ACCIDENTS

Evening Post, Volume LXIV, Issue 90, 13 October 1902, Page 5

COMPENSATION FOR ACCIDENTS

AN IMPORTANT POINT. A point of considerable importance was involved in a claim for compensation heard by the Arbitration Court this morning. Charles Barry (for whom Mr. Johnston appeared) claimed £300 from the New Zealand Shipping Company for injuries received while working on board the Whakatane in September, 1901. The facts -were not in disf>ute, and it was admitted that the claimant, who nearly lost his life, was permanently injured — his back was broken by the fall— and he could not attend the Court. Mr. Tripp, for the company, however, raised the objection that the claim for compensation was not made within the three months from the <Jate of the accident, as specified in the Workers' Compensation for Accidents Act of 1900. The points requiring a settlement by the Court were— (1) What is a claim? (2) Must a formal claim be made? (3) i\iust the claim be in writing? (4) To whom must the claim be made? Mr. Johnston submitted that the claim was made while Barry was lying at the hospital, through Mr. Brown, the company's stevedore, and that if not made formally such omission was . due to the conduct of the employer, who was therefore estopped from now raising any objection. It was understood, even after these proceedings, that the Shipping Company did not raise any legal point, but admitted liability, and left the assessment of damages to the Court. The Accident Insurance Company, which would have to pay the amount, however, stepped in, and through it the point now taken was raised. In the course of his evidence this morning, Mr. Burnes, local manager for the New Zealand Shipping Company, said, in reply to Mr. Justice Cooper, that if it. had not been for the Insurance Company his company would have settled for the accident. His Honour said it was apparent, from the correspondence, that theve was no intention in the mind of the Shipping Company to raise any legal point. It only wished the amount to be assessed by the Court. Mr. Burnes concurred, and remarked that until Mr. Tripp took the point the company had no intention of doing so. It was explained by Mr. Tripp that the Insurance Company was not a local one, but was an English Indemnity Association, which was not responsible unless there was a legal claim against the company, so that if there was any point the Shipping Company was bound to take it. Mr. Tripp added that if his contention regarding the three months' notice was not upheld, he hud nothing whatever to say on the question' of amount. It was admitted that Barry was very badly injured, and that but for his indomitable* pluck he would not be living now. But his claim was purely one under 'the statute, but for which he would have no remedy at all, for there was no suggestion of negligence on the part of the employer. As it was a case under a, statute, it was necessary that the requhements of the statute should be complied with. One of the requirements was- Hie giving of notice of a specific claim witLiu three months of the accident. That was not done here. Mr. Trjpp remarked that the Act was badly framed, as, for instance, it made no provision for a man totally incapacitated having his claim made for him, so that if three months went by, he had lost his right to clrfim. With regard to Mr. Johnston's contention as to Brown acting as a servant of the company, Mr. Tripp submitted that Bio .mi acted merely as Barry's agen.r, and (hat Barry asked him, as "he would ask any one else, to see that the claim was put in. His Honour, after brief consultation with the other members of the Bench, said it was quite clear that no written claim had been put in, and it was also clear, npon the authority of Powell v. the Main Colliery Company, Ltd., that no written ->laim was necessary. It was further apparent, on the authority of Wvight v. John Bt spall and Sons, that an agreement arrived at between the parties shortly after the accident, that tlieie is a statutory liability on tie employer to pay compensation (the amount of compensation being left open for future settlement) was evidence upon which the Court may properly find that the em-, ployer is estopped from getting up the defence that the claim was not made within the three months specified in the Act. In regard to the letters, the Court was entitled to look also at the surrounding circumstances. In the Court's [ opinion, Barry was so seriously injured I that Brown was sent by the company for the purpose of ascertaining his condition. , Brown, either on behalf of the company, or from kindness, probably kindne&s, offered to make the claim for Barry, and told the company's accountant of it, with the result that the latter wrote to the Indemnity Association. If the matter had not gone any further, then it might have been that, under the case of Kendall v. Hill's Dry Docks and Engineering Company, the claimant would not have been entitled to recover. But the claimant, being doubtful, wrote to the com pony, asking what the position of his claim whs. The company did not reply and say it did nol recognise any liability as no claim had been sent in, but it would pay some compensation. Instead, it sent a reply, the intention of which was, in the Court's opinion — borne out al«o by Mr. Burnes — to convey to Barry that he need not trouble hiimelf about the fact of liability, and that the only matter requiring settlement was the issessment of the damages. That, in the Court's opinion, constituted an agreement, and brought the case expressly under Wright v. Bagnall. The parties had agreed that there was a statutory liability to pay compensation, but the respondents had reserved the right to go to the Court to determine the amount. That was the inference to be drawn from the letter in reply. The Court, therefore, held that claimant had established his claim. ' He was permanently injured, and the Court Vould order weekly payments of the £300, at the full rate allowed by the Act (50 per cent, of the avet- ! age earnings, £2, in the coinpanv's ein- | ploy) — viz., £1 per week. In reply to Mr. Johnston, his Honour said that, as it was most likely that the man would lie like a log for &ome time, j it was the Court's opinion that the £300 should be paid down. However, an order I to that effect could be made if the Court was applied to. Costs were allowed at £15 15s.