NONSUITED

Evening Post, Volume CXXV, Issue 84, 9 April 1938, Page 24

NONSUITED

LOSS OF AN EYE

COMPENSATION CLAIM

An interesting point involving the powers of the Court of Arbitration was raised in a judgment delivered in the Court yesterday by Mr. Justice O'Regan, in the case between Frederick Brindle, waterside worker, and the Wellington Harbour Board. Mr. F. W. Ongley appeared for the plaintiff, and Mr. J. F. B. Stevenson for the defendant. The plaintiff claimed compensation for the loss of an eye while in the employ of the board, and stated that the eye was injured on December 18, 1934. He received full compensation during the period of total disablement. Though his earning capacity was not impaired, the eye gave ,him trouble afterwards, particularly on windy days. On December 23, 1936, when he was pressing wool, dust was blown into his eyes. He claimed that he was obliged to cease work at noon the following day on account of pain in the right eye.- He consulted a doctor, and was removed to hospital. Subsequently the eye had to be taken out. In evidence, a doctor stated that the most probable explanation was that the previous accident caused a dislocation of the lens, and that the dust caused a glaucomatous condition. Another doctor held that it would be impossible to have a dislocated lens for tyvo years following an accident-with-out the knowledge of the sufferer, and added that there was no recorded case of glaucoma resulting from the contact of dust with the eyes, and that the impact must be from something more substantial. A blow would do it because a blow would cause engorgement of blood, but even then the condition could not be latent two years. At the close of the plaintiff's case, Mr. Stevenson moved for a nonsuit, but the Court determined to hear the evidence for the defence, reserving consideration of the nonsuit. Having heard the evidence, the Court was proceeding to give an oral judgment on the following day when Mr. Ongley intimated that he would elect to be nonsuited, inasmuch as there was a possibility of his getting further medical evidence. This Mr. Stevenson opposed, holding that, the Court having heard the evidence presented for the defence, the proper course was to enter judgment for the defendant. Thereupon" the Court undertook to consider the matter further and to deliver a considered judgment. RIGHT TO NONSUIT. "Originally every case under the Workers' Compensation Act was an industrial dispute under the Industrial Conciliation and Arbitration Act, and hence there was no jurisdiction to nonsuit," said his Honour. "This was altered by the regulations under the Workers' Compensation Act, 1908, the effect of which is that this Court has the same jurisdiction in the matter of-nonsuit as have the older tribunals. The right of a plaintiff to elect to be nonsuited exists at common law, and though it has been abolished in England, it remains in this country. "Further, it happens frequently in practice that the defendant moves for a nonsuit at the close of plaintiff's case, but the Court reserves the point and decides to hear the defendant's evidence, as was done here. It is well settled that in such event the plaintiff may still elect to be nonsuited before judgment, or he may be nonsuited without his consent. Doubtless, a general rule cannot be laid down, each case depending on its own particular circumstances, and it would appear that the Court has a wide discretion in the matter of nonsuit. Inasmuch as the Court had commenced to deliver judgment in the present case, it may be that Mr. Ongley was too late to elect to be nonsuited. We think, however, upon further consideration, that there should be an order of nonsuit, pursuant to Mr. Stevenson's motion." Costs were fixed at £10 10s, with £2 2s allowance for one medical witness.