NEMONA DAM FATALITY

Grey River Argus, 6 March 1937, Page 10

NEMONA DAM FATALITY

DAMAGES CLAIM FAILS Question of Negligence In the Supreme Court at Greymouth yesterday, Mr Justice l Nortlhcroft n.nd a jury of twelve heard a claim for damages on behalf of the widow of Ansley Adair Moore, a miner, who was killed on June sth last, through the collapse of the Nernona dredge dam. The jury found in favour of the defend'ant, holding negligence had not occurred. The Public Trustee, as executor ot the estate of Ansley Adair Moore, sought to recover £2OOO damages from William Gordon McKay, of Greymouth, engineer. Plaintiff sued, as a person entitled under the Deaths by Accidents Compensation Act, 1908, on beahlf of Elizabeth Moore, the widow ot l deceased, and her son, Barnabas Adair Moore The case arose out of an accident on the site of the Nernona dredge at Marsden on Friday, June sth, 1936, when Moore and a fellow-worker named William Wood were overwhelm, ed and drowned by a sudden inrush of water owing to the collapse of the dam constructed to enable the dredge to be floated. The following jury was empannelled: Kenneth Ernest Balchin (foreman), Harold Lamont, Gustav Theodore Schaef, Ernest Christian Hansen, William Gordon Eadie, Wallace Newman Messenger, Thomas James, Hornsby, Charles Henry Lawry, William Alex, ander Lindsay, George Kear, Fredetick William Trainor and Louis Francis Anderson. Mr O’Regan challengeed three, and Air Hannan two prospective, jurors. Air P. J. O’Regan, Wellington, appeared for the plaintiff, and Mr J. W. Ilannan, with him Air W. R- Lascelles. Christchurch, appeared for the oe. The statement of claim stated that at all times material to the action, t ie defendant was constructing a dredge, for the floating of which he had erect, ed a dam across the stream known as Cock-eye Creek, at Marsden; that the said Ansley Adair Moo-re was employ, ed under a contract of service in con. nection with the construction, of the said dredge; that the dam-site and stream-bed were part of the dredging area; that on Friday, the sth day or June. 1936, and said Ansley A&lit Moore and a fellow worker named WilHam Wood, were assisting in an at. tempt to strengthen the said dam when it burst, and the water therein coming awav suddenly, both men were drowned; that the said accident was due to negligence on 'he part of the said defendant in that (a) the said dam was erected without the provision- of a boxdrain at the bottom, whereby the water could be drained off or reduced whenever necessary; (b) that the said dam was not provided with a spill-way, whereby the water might have been appreciably lowered and the pressure reduced; and (e) that although no means had been provided for allowing the water to escape, the said dam might have been strengthened without risk; that the said accident had occurred in consequence of the defendant’s failure to observe due precautions; that the widow and child had suffered serious pecuniary loss by reason of the death of the said Atasley Adair Afoore, where, fore the plaintiff claimed by way of damages, £2OOO, together with costs according to scale. The statement of defence admitted the accident and deaths, but denied negligence on the part of defendant, and pleaded two defences —(1) That the death o f t he said Ansley. Adair Moore was due to inevitable accident, and (2) that if there was any negligence on th e part of the defendant (which was denied) there was contributory negligence on the part of deceased in that in attempting to strengthen the said dam by “tomming” the log which extended across part of the same, he acted in disobedience of the orders and contrary to the express command of the defendant, whereby, and not by the negligence of the defendant, he was drowned.

Mr 0 ’Regan, in his opening to the jury, said that an action claiming damages for the death of another was often erroneously called an action at common law. The fact was that the common law of England, unlike that of Scotland, allowed no right of action in respect or the death of anyone, the legal position being expressed in the maxim, actio personalis moritur cum persona—a personal right of action died with the person. The common law, however, had been amended by the Fatal Accidents Act, 1845, generally called by lawyers Lord Campbell’s Act, in honour of its distinguished author. That Act had been adopted in New Zealand by the English Acts Act, 1854, but had been copied by our own legislature under the name of the Deaths by Accident Act, 1880, which had been codified in the Consolidated Statues, 1908. The Act conferred a right of action for damages on the wife, husband, parent, or child of a person killed in every case where the deceased himself might have sued for damages had he been merely injured and not killed. Accordingly it was always necessary for the plaintiff to prove two things, each equally essen. tial—first, that the accident was due to negligence on the part of the defend, ant, and, secondly, that the plaintiff had suffered financial loss by reason of the death. In the present case the widow wmuld have no difficulty in satisfying them that she and her child were totally dependent on the contributions of deceased, and as for negligence, there was clear evidence thereof. A dredging area was a mine within the meaning of the Mining Act, and there was a statutory presumption that an accident occurring in a mine raised a presumption of negligence against the defendant. Apart from that presumption they would show that a box-drain could easily have been provided in building the dam whereby the water could be reduced or drained off at any time; that a spillway could have been provided whereby the water could be reduced and the pressure lessened; or that, even had neither of these precau-, «--ons been observed, one of the upright slabs (to be referred to later) could have been taken out and the water drained off before anyone was asked to work on the lower side of the dam.

' Continuing, Mr O’Regan said that a dam had been erected extending across the stream-bed 136 feet between March "th, 1936, and the date of the accident. What might be termed a string of onion nets were filled -with stones. On the up-stream side a thick layer of clay was cast against these, and slabs about 12 feet long were laid sloping over this clay. Where the actual stream ran, however, a 32 feet ■white, pine log extended, filling the gap be-

tween the onion nets, slabs were laid sloping on the upper side and clay placed over these. Here, ther was necessarily no clay backing on the lower side of the' slabs, and it was noticed that the log was sagging. , It was proposed to fill this gap with onion nets extending right across the stream, and on the day of the accident the two men, assisted ’by another- man named Webster, commenced taking eertaip preliminary steps. To begin with, it was found that, owing to the flood waters leaping over the log, there was a bad scour on the lower side at the site of the proposed additional onion nets, and there was fully flee feet of water in the depression, which would have to be filled with stones before the onion nets could be erected. Accordingly it was clear that the men working at them would have to work for some time in a very dangerous position below the sagging log. In order to make the fence reasonably safe, therefore, they proposed to place a prop or “tom” under the belly of the log, and thereafter to place a cross plank against the ends of the slabs projecting above the log, and to place several “toms” against that plank. Thus the strain on the log would be relieved, and the place on the lower side made safe for th e men erecting the onion nets. A heel-slab was placed in the streambed, a “tom” stood upon , it and stood up under the log, and two wooden wedges were placed on top of the “tom.”' Webster was walking away to procure a mallet >o tap. these wedges in tightly but before he could do so the log snapped, and the two poor fellows were immediately overwhelmed. Thus they conic, see that there was no justification whatever for the plea that the men had caused the accident by interfering with the log in disobedience to instructions. Expert evidence would show that a simple, certain, and inexpensive precaution would have been to provide a box-drain at the deepest part of the dam, by which the waler could have been reduced at pleasure, but even though that precaution had not been taken, one of the slabs might easily have been removed with a crowbar and the water reduced and the accident averted. Hence, apart from the statutory presumption, there was ample evidence of negligence. George Fox Webster, labourer of Hokitika, described how the dam was erected, it being built on erates of stones. A gap in the dam was bridg. ed by a log 30 feet in Jemgtii. It. was about 15 inches at the big end and a little over a. -foot at the small end. Slabs had been placed up against the log. In company with deceased and Wood, witness was endeavouring to put a “tom” or a prop under the log, which was sagging in a perpendicular fashion. A red pine sill was placed- on the bottom of the prop, and the prop was placed vertically under the log for the purpose of wedging it in under nine log. After placing the wedges in position, witness left to obtain a hammer. He had gone a short distance- when he beard something snap. He looked around and saw (lire dam had broken away and it here was no sign of the other two men. 'The wedges were just siiriply pushed in hand!tight and the prop had taken no strain. The placing of the “tom” under the log was a preliminary step towards taking further measures to reduce the pressure on the log. Four or five “toms” would- have been put. in if the accident had not happened.

To Mr Hannan: Witness first worked with the deceased Moore on ithe Kaimata dam. This was the biggest dam in the district and deceased was regarded as most experienced, careful and conscientious. Moore was foreman on the Nernona job. White pine was the asfest timber for use- in dam construction. The collapse of the dam was unforseen and no blame was attachable to anyone. As an expertencefl: miner, witness felt: quite safe working alongside the dam. It was a pure accident. To Mr O’Regan: Moore was engaged as a- rigger at Kaimata. There was a fatal accident an the Kaimata dam.

Sidney Arthur Alexander Fry, min. ing engineer, Christchurch, who in. spected the scene of the accident on June 12, stated that he provided a report to the Public Trustee on June 18, in which he described the construction of the dam. In the construction of dams, it would be safer to have a box drain placed at the bottom of the dam for drainage pwrposse. It was very necessary and .should always be provided.

To Mr. Ilannan: He did not recollect telling Mr McKay he was furnisih ing the Public Trustee with a report. He did not thiink that he had done so. To relieve the water pressure, he did not know if it would be practical to remove a crate o f stones, of which the Id'am ' was mainly composed. The breaking strain of' the green white pine log which wa s used at t.he dam, would be about 60'tons. Witness considered that the log was only loaded up to one-fourth of what it should have been capable of carrying and under the circumstances the log should not have given away. This concluded the ease for the claimant. Mr O’Regan stated that ho relied upon Section 294 of the Mining A'ct.

Mr Hannan submitted that there was no case to go to the; jury, .as there was no evidence whatsoever of negligence, but that it was a pure and simple accident. Webster had said' .that tlhe usual procedure in the construction of the dam 'had been adopted, and under a capable man. N o positive evidence was produced l on the part of plaintiff. There was no evidence that' McKay was an owner under the' Mining Act. There was only ithe evidence that those men were working for MeKay. It had to be proved that it was a inine and' tlhat the defendant was she owner.

Mr. O’Regan said that the Mining Act provided that any contractor was covered by the. provisions of the Act. Mr. Hannan .said that there wa s . no proof that McKay was a contractor. Mr. Regan asked' for leave to recall the witness, Webster. His Honor said that Mr. O’Regan had closed his ease and the defence had raised a non-suit point. However, it was not desirable, he thought, that the non-suit point should be eonsiderbuli that the ease should! go before the jury. He would hear counsel on the non suit point later. Webster when recalled said that Me. Kay wa s tlhe man by whom witness was employed. McKay was building the dam and dredge. Mr. Lascelles said that negligence must be established' in this case. The question for the jury to answer was this, was Mr. McKay to blame for the death of his foreman, a serious issue so far as Mr. McKay was concerned. Defendant', contended that if big instructions had been adhered to, this unfortunate accident would not have occurred.

The Defendant, William Gordon Me. Kay, in evidence, said that as a contractor he had considerable! experience in dredge construction. He said that the deceased Moore was the most ex-

perleneed man in hi s class of work. The Nernona dam was constructed in two stages, said witness. The first was an earth embankment composed of gravel, clay and dirt, scooped- out of tlhe stream to form A pond. Early in March the spillway portion of the dam was built, and the construction was commenced with stone crates on the downstream side and clay, on the upstream side. This work had just, been completed, whan a heavy. flood opened the gap between the crates and the earth, portion. Moore immediately got work in an endeavour to cure it, by placing the log and other timber across. He had not quite completed the work when another flood dropped the log four feet at one end. and a larger log was put in; also stone crates supporting the log for five or six feet, at either end. Slabs were obtained from a nearby, sawmill and driven down into the dirt and placed up against the log. Manuka scrub was- also obtained! to provide a mat. This was covered to a depth of 2ft 6ins by clay, gravel and- sods. This work was completed about May 18 and ithe water in the dam rose to the level of the spillway. The dam was then quite satisfactory for witness’s purpose. On May 18th, Aloore and the other men were engaged: in dredge construction work. There was a rise of about tw 0 feet, in the dam on May 28 due to a small flood The dam stood the test alright, but it was eoinsidered' that a scour might take place, in the event- of a heavy flood. At lunch time on the Tuesday before the accident witness discussed the question of the dam with the men engaged. Witness’s suggestion, to Aloore was to cut the. slabs off about a foot above the log, and then complete the crate wall rigiht across. Aloore agreed that this would be advisable, but did not favour cutting the ends off the timber, but leave them and force the water over the crates. It wag agreed to go ahead with the work, of putting in mo-re crates and leaving the dam as it was. The only reason that they intended to do anything to the dam was to prevent; scouring below the spillway. Witness gave instructions for the crates to b e completed, and leave well alone so far as the- dam was concerned. On the next morning, Cuff who drove witness’s lorry out. from Greymoutih reminded witness that- wire was required for erates and witness obtained them. However, the weather was fine and nothing was done on the dam until mid-day on the Thursday, tlhe day following and the day prior to the accident. Witness had to go to Hokitika that day and Wood and Aloore. to go ahead with the work of putting in the crates the downstream side. Witness was on the dredge on the Friday when the dam broke away. He did not know,, anybody was injured because he did not know there was anybody working where the dam broke away. The men were caught in bewteen the slabs when the dam broke away. There was no water going over the log. It was below that. Wnitiiiess did not think the darn would burs! and thought it was perfectly safe. Witness could not account for the snapping of the log. There were several theories as to the breaking of the log. but he could no. explain it. The water in the dam was three feet lower than it had been some time previously. To Mr. O’Regan: The question of] the sag in the log was discussed with Moore and Wood and .the conclusion arrived 1 at was that it. was not danger, ous. Witness had 18 men employed on the .job, and had a policy of indemnity. ilis indemnifiers at this time cancelled their policy with witness. He could not say whether that it was on account of this accident. Witness did not discuss the placing of a “tom” under the log, with Aloore. According t 0 Webster’ s evidence it appeared that the men were going to go on with the placing of crates under the spillway. Witness admitted being the contractor for the construction of dam and dredge, and the dam was to float the dredge. To Air. Hannan: The insurance company were repudiating the claim that deeoa-sed wa§ covered by a death by accident claim. George Cuff, an employee of McKay’s, gave evidence of procuring net. ting for the manufacture of crates for the dam, following a decision to place them on the downstream side. To Mr. O’Regan: The crates were not put in after tlhe accident. Tom Learmont, mining engineer, Gireymouth, stated that Afoore was an experienced man in dam construction. The construction of the Nernona dredge was the usual one and quits a sound practice. A log having a diameed- of 15 inches was perfectly safe. A box drain would be useless in flood time. To lower the water, part of 1 crate could ho taken afvay. Mr. O’Regan: Frosty weather might have caused the log to snap. Provided' he had fears of the log coming away, he would take precautions before proceeding to put in any crates. Frederick Fischer, dredgemaster of the Argo dredge, stated that he visited rhe Nernona dredge a few days before the accident and he did not consider the men were taking any danger, ous risk in working under the log. To Air. O’Regan: The placing of a “tom” would no doubt be to relieve the strain on the logGeorge Lowes, Inspector of Gold Alines Reefton, said that he had been of the opinion that the fatality was a pure accident. To Air. O’Regan: From what Webster told him, what the men did, did not adduce the breaking of the log, unless, perhaps, the “tom” slipped and a sudden strain was the result. To His Honour: With the log sagging. he would have been nervous about such a position and -would' have ordered precautionary measures to bo taken. He would not have permitted men to work under it. Air Lascelles in his address contended that Moore’s disregard for definite instructions issued by McKay, was in effect contributory negligence.

Mr O’Regan said that the men had not disregarded orders. It ■was apparent to them that a danger existed and they had been in the act of placing the "toms” against the sagging log as a preliminary step when the accident occurred. Th e work of placing the crates in position would follow later, when about ten men would be engaged, and the position of the sagging log made secure. Negligence did not involve any moral wrong or stigma. Where he considered defendant negligent was in allowing the men to work under th e log. The dependants were entitled to £lOOO under the Workers’ Compensation Act, stated Counsel. His Honour, addressing the jury, said that it was upon the defendant to satisfy th e jury that it was due to inevitable accident and not to his negligence. It appeared that in this case, the insu’rance eempany denied liability to Mr McKay and that he would "have to pay. However, that was no the.. point and the case was to be judged bn its merits and the facts as placed before the jury. It was

clear, said his Honour, that AfcKay not know that the men were doing the work stated, nor did he instruct them to be there doing this work, and it was therefore clear that he was no negligent in this respect, lhe n«xt consideration was whether AfcKay lef the dam in such a condition that the men would be imperilled. There was, however, no reason to expect danger, and this was borne out by the evidence of Lowe and deceased’s own action. If deceased thought that there was a risk it- seemed hardly that he would risk his own life and the lives of two others in placing the men to work under the log. The jury could be asked this question: Were Aloore alive to-day and crippled-, would, he have said 'that AfcKay was negligent in not seeing the (’.anger that he did not see himself? The issues placed before the jury were: — 1. (a) Was the accident due to the negligence of the defendant Answer: (b) If so wherein was the defendant negligent? Answer: 2. (a) If the answer to 1 (a) is yes, then was there any contributory negligence on the part of the deceased? Answer: — (b) If so wherein was the deceased contributorily negligent? Answer: 3. At what amount do you assess the damages? A n s w e r: 4 How do you apportion the damages be.tweqn the widow and the son of the deceased? , . Answer; Widow: £ Son: £ The jury retired at 3.25 p.m. to consider the issues which were placed before them, returning at 4 p.m. with an answer of “No” to the first question 1 “was the accident due to the negligence of defendant?” His Honor thanked the jury for attention given to the case. Air Hannan asked for costs. Judgment was entered for defendant, with costs according to scale, witnesses’ expenses and disbursements to be determined by the Regitrar. Afr O’Regan said that Section 52 of the Workers’ Compensation Act made provision for the trial judge to fixed workers’ compensation, but lie did not think it. was necessary in this ease, and counsel could arrange it between themselves, ‘ His Honour said he would leave it to counsel and if they could not. agree, he would be pleased to receive a memoranda