PETITION OF RIGHT

Evening Post, Volume CXI, Issue 77, 1 April 1931, Page 6

PETITION OF RIGHT

CASE AGAINST CEOWN

INJURED MOTOR DRIVER '

DISLOCATION OF NECK

A potition of,right asking for. compensation was presented in the Arbitration Court yesterday by Herbert Sydney Caldwell Whyte, motor driver, of Wellington. Mr. H. J. V. Jaincs) with'Hm Mr. K. L. A. Cresswell, appeared for tho suppliant, and Mr. J. Prendevillo for the Crown. ■> ~..-.... The petition: set out that on 23rd Juno, 1928, ..while in tho employ of the Post and Telegraph Department "Whytc was driving a motor van out of the northern entrance to the G.P.0., Wei-, lington, when the vehicle collided with another van. He suffered injuries'to the base of tho-skull and neck, causing concussion and neurasthenia. He had-undergone treatment at various hospitals, but was still suffering from the effects of the collision. The Court was -asked to award such com-pensation-as was just under the .circumstances. . The statement of defence- admitted that the'collision had caused slight concussion,' but • pleaded that the suppliant recovered from the effects of the accident and resumed work on 16th July, 1928. 'It was also urged that the neurasthenic condition complained ot existed bef otb ; the accident. As an alternative defence it was submitted that the proceedings were not commenced within six months of the date of the accident. Dr. G. Marshall said that m August, 1929, Whyte was suffering from marked neurasthenia and' also complainecL of pains in the neck. By the following February he had made very poor progress, considering the time he had been under treatment. Although there was no official record, witness understood that Whyte had a dislocated vertabra of the neck. The accident' would have aggravated nay neurasthenia that was present before it happened. .J)r. H. C.Faulke said that on the assumption that Whyte was a prominent athlete before the accident he was a nervous wreck at the present time. It was possible that in the course of years he- might do light work. There was not the slightest' doubt that his neck was out of position. Witness produced two X-ray photographs which, he said, showed that two of the .yertabrae of the neck'were.fractured. The suppliant'gave evidence that, he was 36 years of ago. As a result of the collision he was sent, to .hospital and remained there until 3rd July, 1928. Shortly afterwards he had to go back to hospital ifpr; a short ■period. On, his discharge he was given a certificate to the effect that he had suffered concussion. He was put on to light work. In November ho went to Christchurch on annual leave, andJwhile .there he had to go into hospital again'for the remainder of his leave: On his return to Wellington lie was put on to light work again on full pay. On the' one occasion when ho collected his pay himself he was unable 1o sign his name. Early in December ho was sent to hospital suffering from loss of memory and pains in the head. The pains were still present. Prom 4th January to' 31st July, 1929, he was at Hanmer. Then ho returned to Wellmg--Icm, but early in August he again had 1o undergo treatment. This continued for some months..'When the question of going to Hanmer' was being considered ho was advised to go to the War Belief Association for funds. While he was at Hanmer his brother applied-to. the Pensions Department for an increased pension, the understanding being that the Post and Telegraph Department regarded witnesses' condition-as due to war disability. However,, the Pensions Department ultimately declined to recognise the claim. Witness went on to say that betore the final treatment the Minister in charge of the. .Department considered his case and gave an assurance that he would receive a compassionate allowance while in hospital.;"A petition was also presented to Parliament and fay-, ourably reported -upon. At present he was suffering from violent head.pains and was unable to sleep.- Since Decem.-. ber, 1928, when his pay from, the Department ceased, he had:tried to do; work of various kinds, but was not equal to it. Before the accident he had taken an active part in field events at. sports meetings for several years.' Cross-examined,, witness denied having complained to several doctors before the accident of pains in the head and loss of consciousness..Ho admitted that ho had applied to -tho -War - Pensions Board for an increased pension. That, ho waver,, was. in respect or" .disabilities differmit-from-those arising out of .the. accident.....,.., '..-.. „,. ~ ' James M'Kenzie, scerotary 4oi the 1 Post and Telegraph Employees' Association, said that he took Whyte to see the Minister in July, 1929. Mr. Donald tola Whyte that he should go back into hospital, as he could rest assured he would get a square deal. Witness heaTd :io mention-'of a compassionate, allowaneo. ■*'■"■. V ■''-■ ■■'■■ .'■ - ■•'.. In Eerily-to Mr. Prendeville, witness .said that. his\experience was that his .-issociataoil never-had, any success -with <-.laims; foV compensation arising out of injury-While on duty. Thev'suppliant's wife said, that prior to the- adeident he was in .normal health. .-During .the' period when .he was 'on .light work he suffered from loss of memory and-severe head pains. Oh one occasion after his return from Hanmer lie became unconscious at home and a doptor' had to be called. This concluded tho suppliant's case. X-EAY FHOTOGKAPHS. X-ray photographs taken in September, 1929, and produced by Dr. D. 11.I 1. Myers, radiologist, were said to show -that there was.no dislocation of the vcrtabrae. Witness expressed the opinion that the photographs taken last week were also negative. Dr. H. J. M'Lean said that he first] examined Whyte in .1025 in connection with his application for : . a war pension. Whyte then complained of gastric pains and loss of consciousness. 'Both at that time and in 1927, when a fur■tliev examination was carried out, ho was neurotic. When Whyte came to him in 1928 after the accident he had much the same symptoms as before. There was no sign of external Injury to the head. If his spine had been injured as alleged he would have been still in hospital. Witness attributed the attacks described by Whyte and hia wife to hysteria. He was prepared to admit that the accident ■ probably aggravated the condition, but did not consider that it caused any organic injury. ■ : WORKING ON HIS NERVES. Hugh Patrick, supervisor at the Public Service Garage, saidtho did not tell Whyte that the Department would pay compensation. Priors to the accident Whyte, who had a keen sense of duty, appeared to lie working on his nerves, and: afterwards his condition was worse. Witness did not discuss tho question of half-pay with Whyte. No further .evidence was called for the Crown. Mr. Justice Frazer pointed out to Mr. James that the Court had to follow the well-established principle thai, a claim must be filed within six months..of the date of the accident, unless there' was reasonable excuse., The delay between the. Department's notification in May> 1930, that it could not nceept liability, and the filing of the claim this month, was not excusable

ovon if there was some excuse for tho dolay prior to that period. Mr. Prendeville said that if ■ thoj Court,ruled in tho Crown's favour it would be asked to assess -what was a fair and reasonable ex'gratia payment. ' His Honour said that lie knew of cases in which tho Crown had adopted such' a' course. He was surprised tohear Mr. M'Kenzio's statement that, the employees of the Department had no success with their claims for compensation. -.- ' '. • ' -.The case was.adjourned .until tho next sittings of the Court for argument on the question of delay in tho event of a settlement not being reached. The Court suggested tho amount of an ex gratia payment for Mr. PrciidoviHe to. refer to tho Department. . •