AN APPEAL

Grey River Argus, 3 June 1933, Page 2

AN APPEAL

To N.Z. Unions Mr. C. H. Robinson, Haupiri, forwards requests to publish the following appeal to test legal point of great importance to workers. Mr. Robinson has taken up a collection at his job at Haupiri, meeting with a fairly good response from the men there. The appeal is as follows:— A decision has been given by Mr Justice Kennedy in connection with a compensation claim which may have far-reaching effects to the workers throughout the Dominion. It means, in effect that workers engaged as piece workers or co-operative workers may not have the right to obtain compensation under the Workers’ Compensation Act unless the decision is upset. The decision was brought before the Annual meeting of the Alliance of Labour by the New Zealand Workers’ Union and our organisation requested the endorsement of the Alliance of Labour to send an appeal throughout the Dominion in order that the decision of Justice Kennedy should be contested. We are advised by our Counsel that Justice Kennedy’s decision is wrong in law and cannot be sustained; therefore we propose to appeal against the decision if wc can obtain the cooperation and financial assistance of our fellow Unionists. The facts of the case are as follows:—

(1) Edwin John Solomon was one of a co-operative party of workers employed by the Public Works Department in connection with the Waitaki Hydro-Electric Works. (2) On Friday, the 20th day of May, Edwin John Solomon was killed by accident under circumstances which appeared to entitle his widow to claim damages independently of the Workers’ Compensation Act. (3) With a number of others he was at work on the night shift at the bottom of a deep excavation, the work being to fill trucks with rock and spoil These trucks were hauled by a winch up a very steep grade a distance of about 75 yards. and then pushed to the tip-head. the empty truck being returned after every laden truck had been received.

(4) Solomon was-killed by reason of the fact that an empty truck was not properly fastened at the ramp, with the result that it rolled down I into the bottom of the excavation, striking Solomon and killing him.

(5) The unfortunate man left a widow and child, and the Union being of opinion that she was entitled to claim damages, the matter was submitted to our legal advisers. Messrs P J. O’Regan and .Son. (6) Tn July Mr. P. J. O’Regan visited the scene of the accident, and agreed that Solomon’s death was due to the negligence of the man (one of the party) whose duty it was to secure the empty truck, and accordingly he took' proceedings for damages claiming £2,000, the maximum allowed by law against the Crown. (7) The action was tried by Mr.

Justice Kennedy and a jury at Timaru on February 2nd last, when the jury returned a verdict for £1,400 in favour of the widow. £9OO for her. and £5OO for the child. (8) The Crown raised two defences, and these were reserved for consideration by the Judge, namely: — (1) Thai (here was no evidence Io .justify the vordicl of negligence. (2) Thai Hie men being <•<> operative workers. w<*r<‘ independent <-ontractors, and hence that the Crown was not liable for the negligence of the man who failed to fasten the truck. (9) Mr. Justice Kennedy took two months to consider his decision. Ho has now given a very lengthy judgment, in course of which hi* decides the first point in favour of the widow, namely, that there was evidence of negligence to justify the jury’s verdict. but in regard to the second point, he decided that co-operative workers are independent contractors, and hence that the CroVvw is not liable. (10) This decision is of far-reach-ing importance, and is of grave concern to all co-operative workers or men who do work on contract, for the following reasons:—

(1) Hitherto the Public Works Department has. for the purposes of the Workers’ Compensation Act. always admitted liability in the case of cooperative contractors. This fact was proved in evidence at the trial in order to show that the Department regarded

co-operative workers as piece-workers and not as independent contractors. (2 1 ) If Mr. Justice Kennedy’s decision is correct, then co-operative workers are not entitled to compensation, but are dependent upon the bounty of the Crown for payment as a matter of grace. (3) You are aware that the Workers’ Compensation Act expressly safeguards the right of a worker, or the dependents of a deceased worker, to claim damages if advised that they have a reasonable chance of success. Obviously, the object and policy of the Public Works Department is to deprive every co-operative worker or his dependents of the right to claim damages. Tn effect the Department says, “We will recognise liability under the Workers’ Compensation Act though we are not bound to do so. but if you claim damages, then wc will plead that you are an independent contractor.” This is an intolerable position in which to place co-operative workers. and accordingly it is proposed to take the Solomon case to the Court of Appeal. Our legal advisers counsel, that, in their view, Mr. Justice Kennedy’s judgment is absolutely untenable, and they are strongly in favour of recourse to the Court of Appeal. This necessarily involves expense, inasmuch as we have to find (1) security for the Crown’s costs in the action; (2) the cost of printing; and (3) provision has to bo made for the Crown’s costs in case the appeal, fails. Altogether it is estimated that about £3OO is required. Accordingly, we appeal with confidence to our fellowworkers, through the country, including the members of your Union to assist us. As stated above, in order

to appeal against the unfair decision of Mr. Justice Kennedy, it will cost about £3OO. This is a case which affects every piece-worker and every co-operative worker in New Zealand.

As a matter of fact, it affects the interests of all workers because, if the rights of the Workers’ Compensation Act, can be whittled away by decisions of this kind, then the rights of any worker who meets with an accident during the course of his employment are not safe guarded. We appeal. therefore, to our fellow workers to assist us in contesting this case. If we are successful and our legal adviser informs us that he has no doubt we will, it will mean thousands of pounds to the wage workers of the Dominion.

We trust therefore, that your Union will co-operate with us by giving financial assistance to. contest a decision which deprives a. widow and children of their rightful compensation. All donations should be forwarded and cheques made payable to A. Cook, General Secretary, N.Z. Workers’ Union, P.O. Box 588, G.P.0., Wellington. .