SHEPHERD’S DEATH

Grey River Argus, 24 February 1947, Page 7

SHEPHERD’S DEATH

STRUCK BY LIGHTNING COURT DISMISSES CLAIM. DUNEDIN, Feb. 18. A claim for compensation arising out of a tragedy in which a shepheid was struck by lightning and killed has been dismissed by Mr Justice Cngley. The case was heard in the Compensation Court in Dunedin as long ago as September, 1945. The plaintiff was Ann Roberts, widow, of Heriot, who proceeded against John fait Bowie, of Edievale, a station owner. - The plaintiff is the widow of Alfred Roberts, a shepherd, who was employed on the defendant s sheep station. On December 26, 1944, Roberts was struck by lightning and killed, and the widow claimed compensation, alleging that her husband was killed by an accident arising out of, and in the course of his employment. The action was brought under the Workers’ Compensation Act, 1922, and, after hearing the case, the judge stated a case for the opinion of the Court of Appeal the question being: "Did the deceased die by accident arising out of his employment within the meaning of the Act?’’ The judgment of the Court of Appeal, consisting of the Chief justice (Sir Humphrey O’Leary) and Judges Blair, Kennedy, Callan and Finlay, was that if the judge of the Compensation Court found that' the position in which the deceased was at the time of his death subjected him to more than ordinary risk of being injured, then he died by accident arising out of, as well as in the course of, his employment, and that the plaintiff was entitled to succeed. If, however, the judge found that the position in which the deceased was at the time of his death subjected him to no more than an ordinary risk of being injured, then the defendant was entitled to succeed.

In his judgment, Mr Justice Ongley came to the conclusion that the evidence showed that the fact that the deceased was riding a horse would make more than an ordinary risk if the horse plus the deceased constituted the highest point in the vicinity. In this case, the judge said, they did not. ?

“I think that the deceased, who was an experienced man, would probably know whether he was running more than an ordinary risk by riding his horse where he was riding it at the time he was struck,” the judgment concluded. "The fact that he continued to ride it seems to show that he did not consider that he was running more than an ordinary risk. On the evidence I am not able to find that riding the horse in the circumstances made the risk more than an ox’dinary risk. The evidence shows that the accident happened because a cloud charged with electricity drifted so as to miss other objects and contact the deceased. That was a matter of chance. It has not been shown that he was running more than an ordinary risk of such a happening. I find, therefore, that it has not been proved that the position in which the deceased was at the time of his death, subjected him to more than ordinary risk of being injured. The claim accordingly fails.”

Counsel engaged in the case were Mr E. J. Anderson, who represented the plaintiff, and Mr A. N. Haggitt, who appeared for the defendant.