SUPREME COURT

Grey River Argus, 21 September 1918, Page 4

SUPREME COURT

V SAWMILL ACCIDENT

WAI/lEK WILLIAMS v. AIIATIK4

SAWMILL COMPANY

(Before His Honour Mr. .Justice Sim.)

'this was an «ction for £1500 damayes for personal injuries due to an accident in the course of plaintiff's employment at Aratika in February last. Mr. P. .). O'Hegan, with liim Mr. Joyce, appeared for plaintiff, while ATr. Hannan, with him Mr. Doogan. appeared for the defendants."* The following were the jury empaneled:—Mrs. C. C.itlin, C. Uddstrom, A. W. West, It. J. Meade^ Jft. Sulh*van, j. It. Stewart, A. King, H. J. Billett, P. M. O'Donnell, F. M'Gin, P. J. Dwyer and W. Williams.. Mr. C, King was chosen foreman. In opening for the plaintiff, Mr. O'Regan said that his client was an inmate of the Grey District Hospital, and . unable to appear in Court. He had been employed as a trollyman by the. defendant's In connection with their sawmill at Aratika, and on the 3rd February last he suffered the injuries as a result of which he had been seriously and permanently disabled, and his injuries would, be described to them by Dr Usher, \t the time of the accident Williams vas riding on the defendants' locomotive. The locomotive was pushing a rake ot trucks bearing logs towards the mill, nnd "when crossing a bridge the structure collapsed, the locomotive falling into the hollow. Williams got pinned down, and while in that position and unable to extricate himself, his body was exposed to an escape of steam, causing terrible injuries, in addition to which certain bones had been injured. Counsel then proceeded to explain the legal position at soine length. Liability was admitted tinder the Workers' Compensation Act, and in fact the plaintiff's family were in receipt of weekly payments thereunder, but liability under that Act was limited to £500 and even the full amount was payable only if drawn by weekly instalments. If a lump sum were paid, then, in consideration of cash payment, the compensation was subject to a discount of 5 per centum .'it compound interest. The distinguishing feature of the Workers' Compensation Act was that it fixed liability irrespective of the matter of negligence, but the Act did not take away legal remedy existing antecedently thereto, and w^lere an accident could fairly be said to have been caused by the -negligence of tße employer, an injuredf man could elect whether he would accept compensation or take proceedings independently of the Act, but if he took the latter course, the employer was entitled to credit for a-ny weekly compensation paid in the . interval between the accident and the date of the verdict, if the action for damages failed, however, — that was to say if the plaintiff failed to establish negligence on the part of his employer — then Ec could ask the Court to assess compensation under the Workers' Compensation Act, but he had to submit to a deduction therefrom, of the defendant's costs in de- , fending tEe action for damages. They would thus realise that Counsel had a grave responsibility in advising a client* to sue independently of the Workers' Compensation . Act. The present action, continued Counsel, was an action at common law, and such an action could not succeed, no matter how severe the injuries, unless the plaintiff could satisfy the jury that the. accident was due to his employers' negligence. He hoped to convince the jury_ that the accident, beyond all question, had been caused by gross negligence and he would conclude t>y describing the circumstances, and the legal consequence of the facts if they were proved. At common law the employer had the duty cast upon him of providing reasonably safe and ef- j hcient premises, plant, and appliances. This duty did not arise from the con- \ tract of service, but was owing to I all, persons who lawfully come in proximity to or ir contact with the premises. In the present case it would oe shown that tne bridge which cok lapsed had been erected only about) tive years, but yet that its timbers were rotten, for the reason that inferior timber had been used in erecting it; also, that although it was required to bear the weight of an 16-ton locomotive continually passing to and from the mill to the bush, not a single bolt had been used 4n building it, and that nothing more than 6-inch skew nails were used. These two facts would be proved, and if it could be shown that the bridge had been improperly built, and that its defective condition had caused the accident, then the case had been made out and it was for the jury to fix the damages. Finally, Counsel dealt with the defence known as "common employment." The defendants denied the allegation of negligence, but if negligence were proved his learned friend would' probably argue that it was that of a fellow-servant in the employment of the plaintiff. Counsel explained that at common law an employer was not liable in damages where the injury was- due to the negligence of a fellowservant of the person injured, but the common law rule TiaS been modified by statute, but in such cases the employer's liability was limited to £500. For this reason the defendants would doubtless argue that the negligence (if any) complained of was that of a fellow-servant of Williams. To this anticipated defence Counsel's answer was that the employer was perscially responsible for defective premises and appliances, and he would defend that proposition by decisions of the Privy Council. He called Dr. T. N.JTJsher, Medical Practitioner and Superintendent of the Grey Itiver Hospital, who, being sworn, stated that he knew the plantitf, who was admitted -to the. hospital on the 4th February last. He examined him. Dr. Usher here described full 5Ee in juries" sustained by plaintiff, informing the Court pf his present condition, and of his prospects for the future.

Alice Selina Williams, wife of plaintiff, sworn, said: My husband is 32 years of age. We have been married 11 years. Myself and one child are solely dependent pn plaintiff. His average earnings were from £16 to £18 per month.

J. P. E. Wick, Machinery Engineer, Greymouth, sworn, said: I have formerly worked at defendant company's mill at Aratika. Had worked there for 6J or 7 years. I know this special bridge. I was at the mill when all the bridges were built, 27 in all. Ked pine timber was used in the construction of the bridges. I examined one, bridge specially, owing to one ot* the, trestles becoming displaced, as. a result of a big flood. The water in the. creek over whicS bridge was built was backed up by the Arnold River. I was one , of two men who replaced the trestle. This bridge was the first trestle bridge from the mill. Thet"es'tle became displaced about 3£ or 4 years ago. The creek became flooded on many occasions. I noticed that the timber was sappy. The stringers were placed side by side on end. They were fastened with nails, driven diagonally into the timber. TSe nails were not long enough to be driven straight. "No

, holts were used. Short bridges are often built without any trestles at all. In the case of larger bridges trestles are generally used. It is customary to use heart timber in the construction ' of bridges, owing to its being more durable. Stringers should be bolted in a bridge over a creek subject to Hoods, to make the bridge rigid a nil stop the pressure of the water. To His Honour: The old bridge was completely pulled down and a new one put up. To Mr Hannan: He did not assist in building the bridge. it took about a week to erect the bridge and he viewed it daily a'i f l noticed the timber put into it. He said nothing J to Morley about the right timber being put into the work or" that the stringers should be bolted and not nailed ._ He had seen no bridge of the size of the one under discussion in which the stringers were bolted. When he l:a« control of the bridge he did not make my complaint when replacing the iroken trestle. He did not at that time think the bridge was likely to ;o I lapse. To Mr O'Regan: There were twen-ty-seven bridges on that line. Ho replaced many of them, and there were few that at some time or other he did not. fix. Thomas Ord stated that he was a, sawmill er at Aratika and in the employ of the defendants at the time ot the accident. "With his brother's assistance he built the bridge under consideration about five years ago. it took three days to build. He thought it possessed seven trestles. Messrs Waller and England supplied the timber and the manager supervised the work. Six-inch wire nails were used to fasten the trestles. All the timber used in the bridge was not hard timber. . ,Mr Hannan admitted that Williams mci, with the accident through the locomotive falling over the rails, but he would admit no more. Mr Ord, continuing, said after the accident he met the party bringing out the injured man. He saw that one of the legs of the bridge was crushed to pieces on the side nearest the bush .The locomotive had fallen, through and the other legs were displaced. He helped to carry tho rails away, but not to unfasten them. . After the accident two sets of trucks: went across the rails whioh were supported by a jack. To Mr Hannan : . He thought that Morley had much experience in the present class of work. T,he leg that was crushed was the one that supported the join of the stringers, and was the second. or third from the bank. To Mr O' Began: When the trucks passed over the bridge the decking was on. H. Petersen, sawmiller, Aratika, remembered the accident. The scene was visited by him the morning after. He placed a jack under the rails, while the trucks passed over. He noticed that one leg was crushed and the. decking had come away. The locomotive was down in the gulley. He noticed nothing wrong with the rails. G. W. Guy, bushman, Orwoll Creek; stated he arrived on the scene soon after the accident. The bridge was broken down at the far side from the mill, one leg being comparatively crushed. He took away a piece of the bridge, which was exhibited. The stringers had fallen down at the joints and at one part the rails were swlngine in mid-air. The locomotive was lying on its side. He then described the bridge and with the timber produced demonstrated several secure methods which he had seen used. He had seen soft timber used for a bridge constructed for a short time, but never for any length of time. He would class sapped red pine as particularly inferior for this class of bridge. He thought that the locomotive could not have left the rails if the bridge had not collapsed. The height of a bridge has a great deal to do with the strength of the bracing that is required. Witness visited the scene of the accident about 5 or 6 in the evening, that being nine or ten hours after the accident. The piece of rotten wood had been picked up almost perpendicularly tinder wliere the stringer was almost on the bodplate. j Witness knew a previous bridge had been ptilled down and the pieces scattered about. He would stick to his statement that three of the stringers were damaged in spite of the evidpnee of other witnesses, who said only the one was damaged. His Honour intimated that from thp evidence he doubted if there was a case to go to the jury/ No evidence had been given describing the accident and the onus of proof was on the plaintiff. He would not withdraw the case from the jury, but if a verdict was returned for plaintiff, it was possible that, on further consideration by the Court, the verdict could not stand. Mr O'Regan replied that he Ueared it impossible for him to carry the case further. Plaintiff himself, could throw no light on the accident, and if the driver were called he would not -be able to say more than the Court had heard. Mr Hannan submitted that plaintiff must be non-suited, but if Counsel wanted a further adjournment he would not oppose it. He sviggested a short adjournment to enable Counsel to confer. This course was ageed to and the jury were discharged for half an hour. A SETTLEMENT. On the Court resuming, Mr Hannan intimated that a settlement had been arrived at. The position was that his clients admitted under the Workers' Compensation Act and the compensa- | tion thereunder amounted to £457 in;eluding the weekly payments made since the accident. His clients had ji supplemented this with an offer of itheir own bringing the total amount to £700. This amount had been offered some time ago, and although the defendants had since incurred considerable expense in coming from Christchurch and securing the attendance 1 of witnesses they were still prepared to pay that amount. It had been arranged that judgment be entered by consent accordingly, eaoh side paying its own costs. Mr O'Regaii confirmed what Counsel for the defence had said. He was obliged to the other side for offering no objection to an adjournment to the next sitting of the Court at! Grey- . mouth, but he was satisfied that it waa impossible to obtain the evidence re- | quired. Under the circumstances he accepted the offer of £700. His Honour entered judgment accordingly, and the jury was" discharged.