ARBITRATION COURT

Greymouth Evening Star, 22 August 1939, Page 5

ARBITRATION COURT

ALEXANDER MINER’S CLAIM. A claim for compensation, atnoiiuling to .612/1.0/2, brought by John Joseph Sullivan, of Alexander, minor, against, the Alexander Mines. Lid, was hoard in the Arbitral ion Court, Groymoulh, to-day. before Mr. Justice Callan, with Mr. VV. Cecil Prime, as employers’ assessor, and Mr. A. L. Monteith as employees’ assessor. Mr. W. Douglas Taylor appeared for plaintiff, and the defendant company was represented by Mr. F. A. Kitchingham. Mr. Taylor said that, on February 14, 1939, plaintiff, who was employed at the Alexander mines, was coming down a steep track at midnight, when he slipped and fell and fractured one or two ribs. It was admitted that, if plaintiff was entitled to recover anything. he was entitled to recover the amount claimed, phis £1 medical expenses. The only question was whether the accident occurred during the course of plaintiff's employment. Therefore, particular attention had to be paid to the geographical features of the locality. The mine was situated on a hill top, and the miners had to

go up a steep track to get to and from their work. The accident took place off the company’s claim, but the track was provided and maintained by the company for the use of their emplojyees. The track was rough and unlighted, but his instructions were that this was the only means of access to the mine'. The track was open to the public, and the public used it, but the public had no absolute right to use it. Part of the track ran through Crown land, and the Crown had the right to exclude the public from the track. His Honor: And also defendant company’s employees? Mr. Taylor: Yes, but the Crown has acquiesced in the use of the track by the company’s employees. Further, the Crown granted the company a. license for the. mine, and this would be of no use without, access to the mine. Continuing, Mr. Taylor said that at one stage defendant, company had made a deviation of the track. This was made through State lands without protest, from the Crown. Presumably, the Crown took the view that there had to be access to the mine. He submitted that defendant company had assumed dominion over the track. No hand rail or fence was provided for the track. His Honor: Has anyone been killed on the track? Mr Taylor: Not yet, but there have been accidents on the track through men slipping and falling over the edge.

His Honor: The company has been operating for several years? Mr Kitchiugham: The track was formed in 1921.

Mr Taylor quoted a number of authorities in support of his submissions. He said that the House of Lords has held that actual ownership or control of a means of access by an employer was not essential to make the employer liable for compensation, if an accident happened tc an em-

ployee on th© means of access, provided the employee had to use the means of access to get to his work. Accidents on such means cf access had been held to arise out of a worker’s employment. If the track to the Alexander Mine ran through private

property there would bo no doubt about the matter, because the defendant company could not have constructed the track without the ex-

press or implied consent of the owner. He submitted that the fact that the land in this case was Crown land made no difference, because the public had no right to enter on Crown lands, though the Crown might, by an act of grace, allow people to do so. He submitted that plaintiff, at the time of the accident, had a right to he where he was, only by virtue of his employment. Plaintiff, in evidence, said he had worked for defendant company for five years. As a result, of the accident he fractured oue or two ribs and was in ihe Reefton Hospital for a time. The track was very steep and rough, and it was seldom used by the general public, except for people going up to have a look at the mine. The track went through rough country, covered with trees. To His Honor: lie was on a pari of ihe truck made b,v the company when he slipped and fell. This part of ihe track was a short cut. but it was regularly used by the men going to and from work.

Perc\- Thomson, of Alexander, miner, said that the track was the only access to the mine. The deviation or short cut, on which the accideni occurred, was made by the company. To his knowledge no instructions had been given to the men not to use the deviation. The deviation had been made in order to avoid the danger of spoil that was bring tipped from above. To Mr. Kitchiugham: In February, when the accident happened, there was no reason why plaintiff should not have used the original track instead of the deviation, as no spoil was being tipped then.

To His Honor: He never knew the company to do any maintenance work on the short cut, though it did work on the main track. His Honor: 1 think that admission is damaging to your case, Mr. Taylor. James Mineall, Public Works employee, Greymouth, said that three or four years ago he was shift boss at the Alexander mine. While he was there, the track was widened in order to allow machinery ■> be taken up t«.i the mine.

EASE FOR DEFENCE Mr. Kiichingham said the defence was that, the track was a public one and had been used by anyone who wished to use it. William James Hall, manager ot defendant company’s mine, said that the track was sometimes used by deer stalkers and people who wanted to see file mine. His Honor: Where do courting couples go on Sunday afternoon? Up this track? Witness: I don't think there are any 1 courting couples there. Continuing' witness said that, so tar! as ho knew, the company had done mi rn. n -ntenanr-o work cm rhe deviation.< There was no need to. as there was. now no dancer from spoil on the original track. He personally did not use tlio short cut though im knew the miners did. 'Tin* men hail not been told noi to use this deviation. To Mr. 'Taylor: Ho had used the deviation at time.-. He did not know who!her the company was aware thai the majority of the workers used the short cut. l.mt it was obvious from its appearance that it was in regular use. To Mr, Monteith: As manager,, he

had never made any objection to rhe

men using the short cut. Duncan Angus McVicar, of Reefton, retired, said he was one of. the party that first discovered the Alexander reef in 1921. He worked at. the mine ' in the early stages of lhe company. ’The track Io the mine was constructed by lhe Inangahua County Council, with a. subsidy from the Government. Tile track was passed by a Public Works overseer before lhe subsidy was paid. The company had never held a title to the use of the track. When first constructed, the track was used by other prospectors, tourists, and deer stalkers. Mr. Kitchiugham said that, even if the company had held a license for the track, it would have to have given the public access to the track. His Honor said ihat the only evidence about the deviation was that it was made by the company because the regular route was temporarily dangerous. There was no need to use it. at the time of the accident, but the men continued to use it, and the company knew this fact. Counsel should confine themselves' to this aspect of the case. Mr. Kitchiugham submitted that the accident did not occuf on the company’s premises, but at a. place where the public had access as of right. His Honor: But no one suggests that plaintiff was there merely as an ordinary member of the public. He ; was there as a workman leaving his work. ;

Mr. Kitchiugham: But he was running- no greater risk than a member of the public would run when using the track for some other purpose. His Honor: The risk he ran arose out of plaintiff's employment, because he would, not have been there otherwise. With regard to the deviation. Mr. Kitchiugham said that it was made by the company for a temporary purpose, and the fact that, the deviation crystallised into a permanent, track should not prejudice the company. Mr. Taylor submitted that the deviation was provided by the employer, then' was no objection t.o (he men using it. and they were, in fact, impliedly authorised tn use it.

The (’ourt reserved its decision. BLACKBALL MINbIR’S CLAIM. Decision was also reserved in the case in which John Kermode, of Blackball, miner, proceeded against the Blackball Coal Minos Pty., Ltd., for compensation for injuries, which ho alleged were caused by striking his loft leg with a. pick, during the course of his employment. The statement of claim stated that ihe average weekly earnings of plaintiff were not less than £6. and that after lhe accident lie continued to work' for two weeks, bur. was then obliged to cease work because of his injury. In September, plaintiff stated, he returned to work, but on December 15. 1938, he was again obliged to cease work on account of his injury, and bad ever since, and would for some- time to come, be unable to follow his usual or an|' employment. It was claimed that payment of compensation had been refused, and a claim was made for £4 per week to commence from December 15 and to continue until ended, dismissed or redeemed, or such lump sum in lieu thereof as might be just, with £1 medical expenses and costs of the action.

The statement of defence denied that plaintiff was injured in the course of his employment, and denied thi’j. any accident, which may have occurred did occur in the course of plaintiff’s employment. It was denied that the average weekly earnings were not less than £6, and that plaintiff was obliged at any time io cease work because of the injury, whilst the statement regarding ceasing work on December 15, 1938 was also denied, and lhe defendant company further said that, if plaintiff was obliged to cease work (which it denied), such incapacity was due to varicose veins and nor to personal injuries due to accident.

Mr. AV. Douglas Taylor appeared, for plaintiff, and Mr. J. W. Hannan represented tlio defendant company. Mr. Taylor said, that, while plaintiff was off work between June and Sep•lemfber. det’endam company accepted the view that there had been an accident and paid plaintiff compensation, but since then had refused to pay him any more compensation.

Plaintiff said ihe accideni happened in June, 1938. At the time of ihe accident, he was working at a coal face. The pick si ruck him on the shin. The injury was not severe enough, to make him stop work. He continued at his job for .10 clays, though the wound was troublesome, and at the end of 10 days ir was so bad that he- went to the doctor. That night the wound was so painful that he did not go to work the following day. but, returned to see the doctor, who put him off work. He returned tn work some time in September. While he was off work he was paid compensation. He continued to work until the mine closed in December. Between September and December, tlio wound continued to trouble him, and was getting worse. During this period, he had an average rveekly wage of about £9. After the mine closed in December, lie worked for three clays with the Public Works, but his leg would not stand up to t.l:ft work. lie went to a doctor, who told him that he would have to lay up until. the leg was better. Since then, he had had no compensation. He had not been able to work since December. and the leg was still troubling him. The leg was discharging, though not, from the position of ’lie original wound.

At this stage plaintiff pulled up the left leg of iiis trousers, and removed rhe bandages to show the condition oi his leg to members of the Court. In answer to another question from Mr. Taylor, plaintiff said be had never suffered from varicose veins. To Mr. Hannan: He told his mate amt the deputy about the accident, and he told the deputy to report the accident, though he did not anticipate trouble at ihat time. Ho had never had varicose veins. Some years ago ho was in the Grey Hospital with iroublo to his rigtit leg, and 14 years ago ho had irouble with his loft hip. Nineteen years ago. lie received compensation for an accident in Scotland. In this accident his pelvis was injured. Prior to rhe accident, he had worked for ilm Blackball Coal Company for two years. For five vents before ihat, he did not work as a coalminer, but that was not because his ! leg was troubling him, but because he i could not get a job in a coal mine. Dr. 1 Sneddon told him ihat she thought his 'iroublo was the varicose condition of I ihe log. but she did not say it was not due to the accident. He did not have high words with Dr. Sneddon on I the occasion that she put him on the 1 insurance fund. He did not go back

i to Dr. Sneddon, but went, to sec another doctor. From September until , December ho made no complaint ’ about, the condition of his leg Io de- • fondant company, though it pained i him some days. John Llewellyn Davies, of Blackball, miner, said he had worked 37 years for the Blackball Coal Company He had seen the wound on plaini ill's leg several limes, lie hud told plaintiff he .should not be working with the leg. To Mr. Hannan: He had also put. in a claim for compensation against the company. lie had issued a writ, but, on the advice of his lawyer, ii had not been served. Thomas Shadbolt, of Blackball, miner, said ho had seen plaintiff’s leg ijin the bath house some time in October. He had a scar on the leg, and it was still discharging. MEDICAL EVIDENCE. J? ' ,-,y Dr. H. Hutson, of Blackball, said he saw plaintiff in June, 1935. At that time he had a small ulcer on his leg. He examined the leg again after plaintiff had resumed work. , The injury had then healed. Plaintiff showed no indication of having varicose veins. The slowness of the injury healing was probably due to its position on the leg, and the fact that plaintiff had gone on working.

Dr. B. H. S'. Alyward said he first saw plaintiff on December 1.5. He was suffering from an old injury of the left leg, and he also had ulcers on the log.. He saw plaintiff several times after that, and he advised him not to go back to work. Since December 15. he did not consider plaintiff was fit for work because when he worked the leg swelled. He considered that the present condition of the leg was due to an old septic condition that, had not been treated properly. This condition might persist, for a. long time. Two months ago he had examined plaintiff for varicose veins, but. found none. At present, plaintiff had small varicose veins near the ankle, bin. witness thought these were due Io the condition of the legabove. To Mr. Hannan: He did not consider it. needed an expert to detect varicose veins. He did not agree that plaintiff was suffering from varicose eczema. Varicose eczema was always associated with varicose veins. This closed the case for plaintiff. t Mr. Hannan said that lhe question came down to file medical one of what was the nature of the trouble from which plaintiff was suffering. Dr. Margaret R. Sneddon said, in June, 1935, plaintiff consulted her with regard to a pick injury to his leg. At that time she considered there was a devitalisation of tissues due to varicose veins. She saw him on July 5, when she agreed he would be better not working on account of the ulcer which she considered would heal better if he rested. The next day she changed the plaster and on August 31 she gave him a certificate to resume on trial in September. On September 9, the ulcer had healed. When she saw him on October 17, he had developed a skin condition which she considered was a varicose eczema. To Mr. Taylor: When she first saw Kermode the varicose condition near the injury looked as if it had been there a long time. The injury would not do the varicose condition any good. It would slow up the healing of the ulcer. She did not consider the pick injury would have the effect of aggravating the varicose condition. Once the injury had healed she did not. think it possible that the outbreaks were due to the injury. She did not think there was any connection of the present, condition and the pick injury. To his Honor: On the first examination she thought Kermode must have had previous trouble with his leg. The varicose condition would not. be due to the accident. To Mr. Monteith: The injury was on the tissue of the bone. The tissue became more healthy as the result of bandaging. The devitalised tissue would slow the healing of the injury. Dr. H. S. Ray said lie had examined plaintiff that day. and. in his opinion. ho was suffering from eczema in rhe lower part of the left log. There was a moderate degree of varicose veins and one pvomineiii deep one.. The condition of ihe log was duo to varicose eczema and ulceration. It seemed to be a condition of long

standing. The long lime that the injury bad taken to heal was almost certainly caused by varicose veins. He could not. find any evidence, that plaintiff was suffering from anything but. varicose veins. From his own observation ho agreed with Dr. Sneddon and not. with Dr. Alyward. Witness detailed his reasons for this opinion. To Mr. Prime: I'f the subsequent trouble was due to the pick injury, he would not have expected the trouble to recur after the pick injury had healed up. To Mr. Taylor: The trouble plaintiff had at: present, could not all have boon caused by the pick injury. Jf a person had varicose veins and received an injury, he would be moreliable to ulceration. To Mr. .Monteith: The condition of the leg was due to the clevitalis'ed tissues, arising from varicose veins. The Court reserved decision.