FALL OF EARTH

Evening Post, Volume CX, Issue 134, 4 December 1930, Page 11

FALL OF EARTH

[WORKMAN BURIED

CLAIM FOR DAMAGES

"While excavation work was being gone at the back of the Ewart Hospital in March some earth fell away from a bank, burying one of the workmen, Timothy Dunne, and severely injuring him. For some weeks Dunne was incapacitated, and this morning in the Supremo Court, before the Chief Justice, Sir Michael Myers, he claimed from his employer, August Victor Swanson, £.200 general damages and £56 7s 6d special damages, of which £34 7s 6d for wages was the principal item. Mr. E. P. Smyth appeared for tho plaintiff, and the defendant was represented by Mr. C. A. L. Treadwell. Jn his "statement of claim, the plaintiff said that as a result of the fall of ■earth lie sustained fractured ribs, strained tendons, and a bruised back, .It was alleged that the accident waa caused by the unskilful and negligent manner in which the excavations were carried out by the defendant or his foreman, Gcorgo Wilson, and that reas- ' onablo precautions were not taken to prevent the bank from slipping. The statement of^ defenco admitted that the plaintiff was severely injured, but denied that tho injuries were caused by negligence. It was also .denied that proper precautions wer-e not •taken. ' Mr. Smyth said that it was claimed that +.hp accident was directly attributable to tho negligence of the contractor or foreman, or both. In the claim for damages due allowance had been made for payments under the Compensation Act. Oiving evidence, tho plaintiff said ho was.receiving £4 2s 6d a week at the time of the accident, and during the time .he.was incapacitated he- was paid £2 15s a week compensation, so thai . ttie accident had reduced his weekly wage by £1 7s 6d. He wa3 still suf- . £ ering from the effects of the accident Since coming to Wellington he had alwaj's been in continuous employment, and the wages he received from Swanson were the poorest he had ever worked for in this town. Replying to Mr. Treadwell, Dunne said that he saw no signs in the bank giving an indication that it would slip. No scaffolding or artificial supports had been used. .The plantiff said he was an old miner. Mr. Treadwell asked the plaintiff whether he remembered Baying to Mr. Swanson, when Mr. Swanson called on him. at the hospital an hour or two after the accident: "It was not your .fault, Boss; it was just pure bad luck. I have workod in mines all my life, and have never been caught before?" ''Well, I .couldn't tell you that," replied the plaintiff. "I had never been caught before, though. I don't remember using those words." Mr. Treadwell asked Dunne whether it was not correct that lie waited until August before he suggested there was any negligence in connection with the accident. TKe plaintiff: said he was unable to say. He thought he would see his solicitor first. Mr. Treadwell: "Although you were getting about in June, you waited until August before you went along to your legal advisers!"—" No. I had been talking to Mr. Smyth about this before then." . MEDICAL EVIDENCE. Dr. A. Gillies, under whose treatment Dunne was at the Wellington Hospital, aaid ho discharged tho plaintiff on 28th Juno, and in answer to Mr. Treadwell witness said he thought on that date that Dunne was able to start light work. Normally at the end of July he expected that Dunne would have been able to do reasonably heavy work. To Mr. Smyth, witness said that a. strained back was a condition which frequently did not disclose its full aig- - nificance until hard work was attempted. Dunne's back was not the type best adapted to hard work, but witness thought that Dunne had now recovered. Dr. E. W. Gieson said that Dunne was sent to him for examination on 2nd July. He had no objective* signs of injury, but complained of/pains. On 6th October he was given a certificate to go back to work. Bertie Fleming Kelly, architect, and William Larkiu, who wns employed as ;i labourer on the excavatiou work, described the condition of tlio bank. A RISKY METHOD. Samuel Taylor Silver, consulting and constructional engineer, said that the method of undermining the bank that liad been adopted appeared to him to .bo quite unusual, unless there was some special reason for doing it. Unless the' bank was supported he thought that the system, was very risky. In his opinion the nature of the bank did not justify the contractor taking the risk j»f adopting that method of excavation. It was possible, said witness in reply to Mr. Treadwell, that in view of the fact that the earth came away at a Jow point in tho bank, the slip was fine to a fault in the cart'i formation. CASE SETTLED. The case was settled during tho luncheon adjournment, tho defendant Agreeing to pay the plaintiff £190.