HAND INJURED.

Hawera Star, Volume XLVIII, 27 August 1924, Page 5

HAND INJURED.

CLAIM FOR COMPENSATION.

ACCIDENT WHILE PAINTING

DEFENCE DENIES EMPLOYMENT.

A claim fox* compensation ai'ising out of an' accident in a billiard-room at Dpunake in December, 1921, engaged the Arbitration Court at New Plymouth on Tuesday morning. On the bench were Mr. Justice Frazer (president), and . Messrs B. L. Hammond (acting nominated member representing the employers) and Hiram Hunter (workers' representative). 1 Arthur Shippey, junior, of New Plymouth, lately of Opunake, claimed £505 15s 3d from Porau Tamihana (or Thomson), of Opunake, as expenses and damages in coirnection with an injury to his right hand. Mr. A. A. Bennett appeared for the plaintiff and Mr. C. H. Croker for the defendant. Mr. Bennett said that medical evidence was taken at the last sitting of the court in New Plymouth. The claim arose from an accident to the plaintiff on Monday, December 12, 1921, at the defendant’s billiard room in tlxe main street at._Opunake. Arrangements had been made a fortnight previously for the plaintiff to paint the interior of the room at the curi’ent rate of 12s per day, the defendant to supply aty mjaterials. On the day, preceding the accident the plaintiff mixed the paint at a fruit shop belonging to the defendant, and the defendant took it to the billiard room. An arrangement was made for the billiard room to be open the following morning, and on proceeding to it the plaintiff found that the' door was unlocked and the key on one of the billiard tables. The trestles were actually erected for the plaintiff to start work. He mounted the trestles with a pot of paint and’ a brush, and had made one mark on the wall when the trestles collapsed. As the plaintiff fell his right arm went through a window, and as a result of the injuries received he had, to all intents and purposes, permanently lost the use of his .right hand. He had been constantly under the. doctors since that date, and had had two operations with a to minimising the loss of use of the hand. The medical evidence was quoted, showing that the hand was held to be totally incapacitated for painting and 80 per cent, incapacitated for labouring work. The medical expenses had totalled £lB7 11s.

The statement of defence mainly was a denial of employment, and that the plaintiff was a trespasser, but, Mr. Bennett said, it would be clearly proved that on the day of the accident the defendant admitted liability and made an offer of £4 towards the expenses. This was refused, and he was told to wait until the total of the expenses was ascertained. It was significant that until the defence was filed in May, 1922, there was no suggestion that the defendant was not liable or that the plaintiff was not employed or acting as a servant of the defendant

The plaintiff, iu evidence, confirmed what had been said in the opening as to the circumstances of the accident. Eventually he was sent to the King George V Hospital at Rotorua, and was an inmate from September 11, 1922, until May 29, .1923, and from July 4, 1923, until October 23, 1923. Then he was discharged, being told that- nothing further could be done for him. At the. present time he was-do-ing painting and puttying, but had to do most of it with-his left hand. He was earning £2 a week, and ordinarily could have earned about £4 a week. He 'could not rely on getting a permanent job with as it was. Cross-examined7~the plaintiff said he commenced painting at the age of 17, then working for a Mr. Nightingale, a French polisher from Wellington, who came to Opunake to renovate the interior of a hotel. The kitchen and the dining-room were painted. This employment, lasted six weeks.’ Witness detailed his subsequent experience in helping to paint four houses, in the employ of several persons. Then he was out of work for some months before meeting with the . accident. At that time his age was 19. It was agreed at the fruit shop on the Sunday that he should help defendant with the painting at a wage of 12s a day. A suggestion that he entered the billiard room on the Monday morning thrpugh a window was denied by the plaintiff. In reply to a further question from Mr. Croker, he said that no arrangement had been made about the key. On the Sunday afternoon he passed the billiard room and saw the defendant engaged in painting. In reply to Mr. Benentt, the plaintiff said thp defendant had said lie would leave the door open so that plaintiff could enter the billiard room. Arthur Shippey, senior, deposed that whdn he arrived at the scene of the accident the trestles had been moved, and lie remonstrated with the defendant for having done this before the constable had made an inspection. In the evening defendant offered to pay £4 to meet the expenses, but this was refused. Subsequently defendant kept putting him off when the question of meeting the expenses was raised. Robert Moorcock, lorry driver New Plymouth, deposed that he was at Mr. Shippey’s house on the evening of the accident, when the defendant and his wire called. He confirmed what had been said as to an offer of £4 towards the expenses. The defendant said lie sorry the accident had happened. He did not say anything about the boy not. being supposed to be on the premises.

This closed the case for the plaintiff. Ivir Croker moved for a stay of proceedings on the grounds that- the law did not provide for such a case where a painter by trade sued a billiard saloon proprietor. Considerable legal argument ensued on the point. His Hpnor disallowed the appeal, but agreed to reserve the point. Mr Coker then stated that he would call defendant, who would give evidence that not only was the key not in the door on Monday morning, but the window was open. He had to go to his wife to get the key to open the door. Defendant, examined by Mr Croker, stated that lie had made no arrangement with Shippey ; he had been cutside at the time, and his wife bad made arrangements. He started painting bis billiard saloon at nine o’clock on Sunday morning, and continued all day until Sundown. Very little time would have been required to finish the .lob. All the walls were painted, and only work on the ceiling remained to be done. No one except his wife visited him at his work on Sunday. He first went to his billiard saloon on Monday at about a quarter to eight on hearing of the accident, He had locked the door of the saloon oil tile previous night. When lie went up to the door on Monday morning the only opening in the saloon was a upndow, (not the broken one), which lia<l been pushed open. He effected entrance through the door after obtaining the key from his wife. On going inside he found blood on the floor and on the

sill, of the open window, but not the broken one. inere was no blood on either of the dooirs. Shippey was not there when he entered the saloon. Shippey was not, in his opinion, a

goou painter at ail, lie was, however, a great friend of witness’ own bov.

Cross-examined bv Mr Bennett, witness stated that .wnen he entered the saloon on Monday morning tile trestles were standing exactly as he 'had left them the previous evening. He couLd give no explanation as to how the blood came under the trestles anil on the windows. He did not remenibcu' Mr tdiippey senior coming to the saloon alter the accident. Shippey senior certainly did come and speak to him suggesting- that witness should not move the trestles until the police arrived to see the saloon. .He. (nixed, all the paint himself, aiid though. Shippey was present, the” latter did not mix the paint. Witness had made no arrangements with Shippey about- the painting because .lie did. not want Shippey’s help, but his wife had made some arrangement, and informed witness that Shippey would be coining’to help. •

At a, meeting between Shippey senioir, Mrs Shippey, Shippey‘.-junior, Moorcock, witness’ wife and witness, his wife offered Mr Shippey senior £4, but he had no recollection of making any particular comment himself.

Piki Tawhiki, wife of Tamihana, was subjected to a lengthy examination, and cross-examination, in which she substantiated, in the main, the statements previously made by her husband, but owing to her lack of knowledge of English she was unable to give very satisfactory evidence. This closed the case for the defence.

Counsel for both parties briefly summed up the evidence detailed by the various witnesses, and the court then withdrew for ten minutes to. consider the case. " • • .

In delivering judgment, Mr Justice Frazer stated that the case was largely one of fact. The defence was that there had been no definite arrangement between plaintiff and defendant, only a loose arrangement with Mrs Thompson. The onus of proof of contract was not discharged by plaintiff. Judgment was therefore given for defendant. Mr Croker intimated that he would not apply for costs.