A COMPENSATION CASE.

Greymouth Evening Star, 17 May 1906, Page 2

A COMPENSATION CASE.

BERDINER V. CAMBRIDGE, B- 'iEWENT AND GRANT. The full text of the decision of the > Arbitration Court in the case of William Berdiner, Alary Bordiner and Catherine ! Berdiner versus F. J. Cambridge, F. J. . Butomont and H. J. Grant, came to hand , to-day, and is as follows: "The claimants were the father, mother and sister of the deceased Walter Berdiner. Deceased was employed as a fiax- ' cutter and manager of flax-cutting operations. On the 10th January, 1905, ho was killed by an accident thus described. i Deceased left respondent's flax area at , Kokatahi on January 9th for the purpose , of engaging workmen on behalf of resi pondents and communicating with res- . pondents. Having done so in Hokitika, lie was returning to the area when he was I thrown from his horse on the road be- " tween Hokitika and Kokatahi. The defences set up were:—(ft) That deceased was not in an employment to which the " Act applies, (b) that the death was not f caused by accident arising out of and in 1 the course of employment and (c) serious i and wilful conduct on his part. The last S defence was based on information that . deceased had been drinking and that this had caused him to fall from his horse. At the hearing the evidence gave no support to this defence, and the evidence of the persons who saw and conversed with the deceased at the time of the accident was the other way; this defence was frankly withdrawn when the facts were known. The circumstances which gave rise to it, however, have a bearing on the case. Deceased was v, a trusted man. His employers lived at or near Greymouth, and had a flaxmill on the Hokitika railway line, and deceased was in charge of flax-cutting operations at a distance. The green phormium leaves were sent down by water to Hokitika, and thence by rail to the mill. Deceased was paid by the hour while at work, and had ihe regulation of his hours and those of the men under him very much'in his own hands. Men had suddenly left him, driven out of the swamps, it was said, by the mosquitoes. He went to Hokitika to get more men. and telephoned to his employers, and also to get a horse shod for them. There was no reason why he should not have returned that day or, at j the latest, next morning. He did" not, in fact, get away from Hokitika until after I dinner on ihe 10th. We assume for the ; purposes of the case that deceased might ! have been back at his post 24 hours sooner I if he had exerted himself. He had only ! two nd a-half miles to go to reach I Kanieri on the road to Kokatahi, and the j evidence shows that he was there quite | early in the afternoon, perhaps, as early I as 2 p.m. After this four hours or more , are not accounted for, and the circumstance that he was apparently idling about the small township of Kanieri, no doubt, suggested that he was drinking I Ji, served llim with a sm all "shanyI gaff on Ins arrival and another when ho was about leaving, and there was no evidence that he drank in the interval. The witness Diedrich, who knew deceased. passed through the township, and at about , p.m. they started tor Kokatahi. deceased soon dismounted to answer a call of nature; when he tried to re-mount ins wrsc commenced "pig-jumping." This would not upset a rider who was seated >ut it occurred before he was fairly in lie saddle, and he was thrown on his bead, which produced concussion of the brain, and of this he died on the TStli. J-J.cased was a good rider, and the stirrup leather was found to have slipped off Hie cliii, and fallen with the iron to tho ground. It was argued that wfien the accident happened deceased was neither on respondent's business or in respondent s service. Wo assume that the evidence makes out that deceased spent an unnecessary amount of time in Hokitika, and that lie waited or spent in somo way on Ins own account lour hours or more on his 'return journey in or about Kanieri, Ihe lost lime would not be paid for by the employer, and it was admitted that deceased conscientiously deducted such lime as he lost in going to races and in other ways. It is quite probable- that the lost time caused a loss to the employer, as the new men who had eone ahead would have no one at Kokatahi to start them at their duties. It is also true that the accident occurred at a time of day when the deceased would not have been working for tho respondents in the ordinary course. We are satisfied, however, that the legal position stands somewhat thus:—

(1) Deceased having gone to town on the employers' business was entitled to bo paid for the time spent going and returning.

(2) That even if he had given good grounds for dismissal he had not by wasting time, ipso facto forfeited his services, and put an end to his employment. (3) That as he was travelling in his employers' service, it is immaterial at what hour he travelled. (4) That for these reasons the accident arose both out of and in the course of the employment.

| "The evidence as to the partial depend- | ence leads to these conclusions:—The sister is in good health and able to work, | and was only at home because the de- : teased wished her to look after Tier mother. His father has not earned much in recent years, as he seems to have preferred prospecting for gold to his old work on the County roads. He had, howover, at the date of the accident a laborer's job at the State Mine at 9s per day, which still lasted to the date of the hearing. There seems to bo no reason to doubt that he is a sound man, capable of supporting himself.' The real question, however, is as to whether, looking at his ago and the age of his wife, she was not in fact and of necessity dependent on deceased. The father is 63 or 65 and the mother about 60 years of age and not strong. The deceased had built a small house costing £6O, and had given his mother 7s to 10s per week. This was kept up steadily, and might be relied on as equal to 7s or 8s per week. There were other members of the family, who had responsibilities of their own, and were not contributing. We have considered tiie whole of the evidence as to family ■conditions and prospects, and think that the proper sum to be*allowed is £IOO, which we award accordingly to be paid to the mother on her sole receipt. Wo think that the costs should include measures to meet the defence, which was disproved. We allow £l2 12s costs with witnesses' expenses and disbursements to be fixed by the Clerk of Awards." At the hearing Messrs Guinness and Murdoch appeared for claimants and Mr Hanno.n for respondents.