A WORKER’S CLAIM

Greymouth Evening Star, 8 November 1923, Page 8

A WORKER’S CLAIM

JUDGMENT TOK COMPANY. Judgment was entered for defendant by the Full Court yesterday regarding the claim of John William Boyce against the Union Steam Ship Company of New Zealand, Ltd. The court had received an application for (1) a new trial on the ground that the verdict was against the weight of . evidence, and (2) that the plaintiff be nonsuited on the ground that there was not sufficient evidence of negligence on the part of defendant. The members of the Court, which comprised the Chief Justice (Sir Robert Stout), Mr Justice Hosking, Mr Justice Herdman, Mr Justice Salmond, and Mr Justice Reed, are agreed that judgment should be entered for the defendant in this case.”

“This is a peculiar case,” observed Sir Robert Stout. “The plaintiff was a waterside worker, working on board the steamer Komat-a, belonging to the defendant company. In going along the deck he put his fet on a piece of rope and fell and broke his leg. This accident took place on February 14, 1922, and the plaintff did not issue his writ or commence his action until July 19, 1923. He never made the claim on the defendant company that was made in the issue of the writ. He received from the company payments made under the Workers’ Compensation Act for the accident, but never hinted to the company that he was going to claim damages under what is called a common law action. No doubt it may have happened, and possibly has happened, that witnesses who might have been called were not called because of the great delay—about sixteen months • —that had taken place before this claim was brought before the Court. The company, however, had treated the man fairly by giving him money because of the accident, and treating it as an accident dealt with under the Workers’ Compenation Act. There were in the gang working on this vessel eight men, but of these men only two of them had given evidence, namely, the plaintiff and his witness Backhouse. The plaintiff called as witnesses the secretary of the Seamen’s Union, another waterside worker and the late president of the Seamen’s Union, and also a clerk in the Harbour Board, but none of them could give any evidence as to the occurrence of the accident, and the only evidence adduced by the plaintiff was that of himself and the witness Backhouse. “This is not like any of the cases in which a way was left for people to travel on, and the way was not kept clear, such as in the railway cases that were cited,” he said. “It was not being used on this occasion for dunnage, and the plaintiff could have seen, and did see, what was on the deck, because, according to Backhouse, the rope was nine inches or a foot towards the bridge. ’ ’ After reviewing the evidence at some length, the Chief Justice said he was of opinion under the circumstances that judgment should lie for the defendant company, with costs according to scale. Mr Justice Salmond said: —“I agree that there was no evidence to go to the jury or any breach of duty on the partof the defendant company towards the plaintiff, and I think that judgment should be entered for'the defendant accordingly, with costs according to scale.”

The plaintiff is still entitled to compensation, and Mr Justice Salmond informed Mr O. C. Mazengarb, who appeared on his behalf, that he would grant him a fixture later. Mr P. Levi and Mr C. G. White represented the defendants.