£136 DAMAGES CLAIMED

Grey River Argus, 25 February 1942, Page 2

£136 DAMAGES CLAIMED

From Greymouth Borough Council FALL IN DITCH AT COBDEN. The decision of the Magistrate (Mr G. G. Chisholm), was reserved in the Magistrate’s Court at Greymouth yesterday, in a ease in which Alfred John Pentecost, of Sturge Street, Cobden, and L ti. Pentecost, Geraldine, retirea (represented by Mr E. B. E Taylor) jointly claimed £136 7s 4d damages from the Greymouth Borough Council (Mr J. W. Hannan), for personal injury, medical expenses, loss of wages, damages to clothing and general damages, £5O, divided as £133 is 4d to A. J.- Pentecost and £3 to 1. H. Pentecost. The statement of claim alleged that the ditch was a danger and a menace to public property using the footpath, and that . ® Council was negligent In allowing the ditch to exist in the state, it was on July 4, 1941. Mr Taylor for plaintiffs, said that the claim arose out of an accident which was suffered by plaintiffs. A. J. Pentecost had resided in Cobden for some time, but his brother was a visitor. On the evening of July 4, the brothers went to the Caledonian Hall, where a dance was being held. About 10 p.m., they had oc-. casion to leave the hall and lighting, cigarettes they proceeded west along Ward Street. They had gone on y IS yards when thev simultaneously fell into a ditch which was an old storm-water channel. Some Y ear ® ago, the Cobden Town Board formed a road, which was Ward Street, and bridged the creek. However, there was no footpath until 1931, when the Board constructed a tar-sealed path. The Board, nowever, made the footpath to the ditch and recommended it on the other side, nothing being done to bridge the ditch. Pedestrians then formed the habit of walking on to the road to go round the ditch. The Town Board periodically cleaned and chipped the footpath and there was no suggestion that they had allowed the footpath to go to rack and ruin. As a result of the fall, one claimant broke an ankle, and his brother, although not seriously injured, damaged his suit. ~ Alfred John Pentecost, in evidence stated he was a married man and a earpen tor employed by the Railways Department. He and his brother were only 18 yards from the hall when they fell into the ditch, which was about four and a-half feet deep and five feet wide. The wall ot the hall side of the ditch was broken, but there was a good stone wall on the other side. There was no light near the drain. There was no grass around the ditch. There was no protection from the drain at all. He recognised photographs of the ditch which counsel submitted. The Borough Council fenced the. ditch following the mishap. He had never had occasion to walk along the road before The nearest street light was on the far side of Sturge Street, 50 yards away, and there was no light to show the ditch. He broke his left ankle in the fall, and he was assisted home. Dr. Macfarlane attended him and he was admitted to the Grey River Hospital for- a week, where his leg was set under an antesthetic. He was an out-patient foi some time and had his leg in plastei for six weeks. He recommenced work on October 31. His own clothes were damaged. His brother was badly bruised and his suit was badly damaged. His wages were - £6 9s 8d a week. He received £36 from the Railway Sick Benefit Society. He also received £27 10s from the Social Security Fund, but it had to be repaid. He had been off work for 17 weeks. , , . To Mr Hannan: He had lived in Cobden for 14 years. Ward S.treet was one of the main streets in Cobden. but he had never traversed it as he was home only during the week-ends. Mr Taylor submitted argument on

I the question of negligence and nuisl ance, quoting several authorities. Mr Hannan said that the only matter which was alleged was that of defendant allowing the ditch to remain in a dangerous condition. That 'only amounted to non-feasance, for which the Council was not liable. It was not proved that defendant did anything to contribute to the injuries. He proceeded to quote numerous authorities on the question of nonfeasance and misfeasance. Even if there were non-feasance on the part of the Cobden Town Board, the Borough Council was not liable for the Board’s non-feasance. He submitted that in any case in the authorities, where a plaintiff succeeded in a claim, there was mis-feasance and not non-feasance. The Magistrate: Mr Taylor contends that the original mis-feasance of the Cobden Town Board was the construction of the footpath, and that the Council continued the misfeasance in maintaining the footpath. Mr Taylor said that the Borough Council had recognised the footpath and kept it clear. The question of non-feasance and mis-feasance should be clear on the authorities quoted by both sides. The Magistrate (to Mr Taylor): It seems that your difficulty is that v ou must attach mis-feasance to the Council. Assuming that it was a misfeasance when the Town Board made the footpath you try to transfer it with the footpath to the Council. Mr Taylor: The responsibility is there under the regulations. The Magistrate: Yes. I will have to look into it. The decision will be reserved.