COURT OF APPEAL

Evening Post, Volume XCII, Issue 90, 13 October 1916, Page 2

COURT OF APPEAL

JUDGMENTS DELIVERED

The Court of Appeal, First Division, delivered reserved judgment to-day in the case of Joseph Kaye v. the Westport Harbour Board. The appeal was? one from a decision of Mr. Justice Dennis ton. When the case came originally before the Supreme Court, Kaye claimed £1000 damages on account of injuries received by him while employed as blacksmith and tool-sharpener by the board at its quarry works at Cape Foulwind, near Westport. The case was heard by Mr. Justice Denniston and a jury of twelve. The verdict returned by the jury was to tho effect that .the board was guilty of negligence, while there was no evidence' of contributory negligence on the part of Kaye. Damages amounting to £750 were, awarded by the jury, and Mr. O'Regan moved for judgment. Mr. Treadwell then moved that the judgment be eJitered for £500 only, on the ground that damages were limited .to • that amount by section 62 of the Workers' Compensation Act,' 1908. After argument, taken at Wellington on 27th and 28th March, his Honour upheld Mr. Treadwell's contention, and awarded the plaintiff £500 damages. v

At common law, a worker who has been injured in the course of his employment by reason of the negligence of a, fellow-worker cannot recover damages' from his employer, the reason being that he is presumed to have had in contemplation when he entered into the contract of service the possibility of such injury and to have waived his right to claim damages. The harshness of this rule of tho common law ,has been mitigated, however, by section 62 of the Workers' Compensation Act, 1908, by which the defence known as common employment has been abolished, but the amount of damages recoverable for injuries by reason of a fellow-worker's negligence is by that section limited to £500. The harshness fof the common law rule is further qualified by another • rule of law—that when a worker has been injured by breach of a statutory duty, there is no defence of common employment. It was on this rule that Kaye* relied in his appeal.

The unanimous judgment of the Court, read by the Chief Justice, was that the Appeal should be allowed, and it was ordered that judgment,should be entered for Kaye in the Supreme Court for £750, with costs according to scale, disbursements and witnesses' expenses to be ascertained by the Registrar; costs of the appeal to be on the middle scale. Mr. P. J. O'Began appeared for the appellant and Mr. C. H. Treadwell for the respondent board. A NONSUIT ORDERED. Judgment was also.given in the case of the Falmerston Nbrth-Kairanga River Board v. Thomas Alfred Frost, farmer, of Palmerston North, who recently in the Supreme Court obtained judgment for £75 and an injunction restraining the board from proceeding with a cut or trench across an accretion to his land, caused by the gradual deposit of silt and shingle from the Manawatu River. At the hearing, a good deal of time was absorbed in discussing' a preliminary objection, raised by Sir John Findlay regarding a new point' which had ( been raised by Mr. Skerrett for the appellant, which had not been raised or made an issue at the original hearing. Then he (Mr. Skerrett). argued on the basis of the ownership^ of ■ the land, but now in •addition he virtually said 'that;'if the knd were not the property of the board, the board had a right to. enter on respondent's property and carry, ant certain work. ,- • ■ , ... ;

The judgment of the Court was that a nonsuit should be entered'in the Court below and the injunction set aside; the defendant board to receive the same costs as were granted to the plaintiff in the Court below, as on a £500 basis. In the appeal no costs were allowed..