ARBITRATION COURT

Hokitika Guardian, 6 December 1932, Page 3

ARBITRATION COURT

GREYMOUTH SITTING.

GREYAIOUTH, December 6.

The Greymouth sitting of the Arbitration Court was commenced yesterday moiuling, before Mr Justice Fraser, and Messrs W. Cecil Prime (employers’ assessor), and A. L. Monteith (employees’ assessor). | Adjournment Wanted. I Lengthy argument took place over an application for an adjournment pi the hearing of the case of JolaioHeiiry Harwell (Mr P. J. O’Regan) v.e'Briandale Colleries (Mr C. *S. Thom its); Mr T. F. Brosnan, ior Mr Oißegan, asked that the case be adjourned owingto the fru’t of Mr ' O'Regan, plaintiff’s counsel, being detained at Nelson and Blenheim. He had a case at Nelson to-morrow, and one at Blenheim on Thursday. The defence would ! not lie inconvenienced greatly, as Mr : Thomas and Dr. Giesen would havb , been here on other cases. The pari ticnlar case was a difficult one, the I medical evidence being lengthy and ! involved, and Mr O’Regnn was the 'only solicitor in possession of the full I facts of it. It was not a case which another solicitor could handle'at five .minute’s notice*. ; '

| His Honour: Is thpre any special reason' why you or some ether, eounj sol could not take the case, Mr Brosj nan ? j Mr Brosnan, in reply, said the fact that the case was an unusual and highly important one was sufficient reason, al’ied to the fact that Mr O’Regan did not know until late on Thursday that his amplication for an adjournment would be opposed. Mr Thomas objected to the adj.ourn--1 ment on the grounds that there was not sufficient reason why any other intelligent counsel in New Zealand could not take the ease. He submitted that Mr O’Regan knew he would be detained at Nelson and Blenheim, and c-ould have notified defendants earlier than lie did, and so prevented their being put to the expense of bringing ’ counsel, Dr. Giesen and other witnesses to Greymouth, or, in-the event of the application for I ..an. adjournment then being cpnosed. Mr O’Regan con’d have 1 instructed other counsel. Because Air O’Regjan elected .to earn big: fees in Nelson or Blenheim, rather than at •I.Greymouth was. no reason.why an adI journment should be made. There - Iwa.s also a difficult legal point to -be got over, as more than six months , had elapsed between the time that the plaintiff knew of his complaint and the time of the institution of action. Air Brosnan said it was not merely an unimportant case*. aHd was Aft okd* j which counsel could possibly -handle at a. moment’s notice: It was not that - Air, O-’Regan preferred earning his fees at Nelson or Blenheim, but that he preferred to clo all lie could for Ink clients. Counsel and Dr. Giesen would have bePn present for other eases, if -•they had not had this, particular one. but even if it were a question of costs tlip noint could he reserved.

| The Court then retired to consider the argument.

; When the Court returned. H‘s Honor gave his decision. Tt was the rule, lie said, that where counsel found he had two or more eases which would clash, he arranged with some other counsel to take one or ether, of the cases. Very often, however an adjournment could he arranged between counsel. The Court happened to know something about this case, of their own knowledge. When the Greymouth fixtures were made it was known that Mr O’Regan had. cases at Nelson and Blenheim, but Mr O’Regan , later wrote stating that in consultaj tion with Mr Justice Blair, he had ( learned that his other engagements : would not clash with his Arbitration cases. Evidently there was. a mis- ! calculation as to the length of time to be taken by the Tarrant murder trial, and the Supreme Court, fixtures had now been moved on. Mr O’Regan | knew of this re-arrangement only last , Thursday, and he thought he could arrange an adjournment with Mr Hannan, whose name appeared on the re- } cords. However, Mr Hannan was merely the solicitor, and Mr Thomas, lof Christchurch, was acting as counsel, and. objected. In those eircum- , stances it was Mr O’Regan’s duty to arrange with some other counsel to take one or other of his cases. This, however, was not done. It was thought , that the proper course to adopt was to take Dr. Giesen’s evidence at Greymouth, subject to Mr Brosnan being given instructions to go on with that, and to hear the legal point -at Westport on Friday, the costs of the adjournment to be paid by plaintiff. Mr O’Regan could instruct Mr Brosnan or | some other counsel as to his de ence on' the legal point, by a summary-in writing. . . f

HYDRO WORKS CLAIM. {

in the claim, Public Trus+ee, executor in the estate of John Martin Dillon, Kotuku, labourer, deceased, v. Messrs Sparks Limited, contractors, Mr J. W. Hannan appeared for pla.ntiff, and Mr C. S. Thomas represented the defendant company.

The statement of claim set out that the deceased. Dillon, suffered an injury by accident, arising out of and in the course of his employment in that when lifting a lieayv truck he strained and injured Ill’s heart; t'at at the time of tlie accident he was employed bv the defendant company at the Knimata hydro works; that in consequence of the accident he wns totally incapacitated from working up ti September 1, 1 ')."•>: that he died on September 4; that Inn average weekly

earnings wpre, not less than- £5; and the deceased left surviving him his wife and two jyoung children entirely dependent o» ■ him for maintenance aid .support; wherefore plaint.ff claimed £ICOO compensation, £.nd ££2 os Cd medical and funeral expenses. The defence denied that' any accident occurred, during the '''course of his employment by the company > to cause a strained heart'.- ”

Sylvester Adamson ; said he was employed at the Kaimr.tawo:ks ' with Dillon, and lie worked frith tile de(eas“d on the last day on which lie (Dillon) worked oh'the job. Deceased was in good health when he Started rm the back slm't'tat 5 p.m. that day (August 21, l ; S3l)l ! - Dcoeased f 'hiid witness -tv’drel engaged in excavoTikg ; a tail-race and filling trucks w-th spoil, ft wAS-'the 'heaviest work there;' and the workers liild to shovel the spoil up about two feet over their heads into the trucks. When the trucks reached the tip, they were turned round and tipped sideways. The trucks were working on swivels, and wore turned round, in o.dcr to be tipped into the river. The last truck witness and deceased tipped was a particularly heavy one, as they, had put a bit too much in it. When they first tried to . tip it, it came back on them, and they had to get another hold on the truck to tip it. When the truck was ultimately tipped, deceased said he had ricked himself. He did not assist Witness to scrape the'spoil out "of the truck. When the truck was pushed back to the starting point to be re-filled, deceased shovelled only two or thre? shovelsful. He then said lie was not feeling too well, and went home. Another man replaced biili, and the deceased did not return to the job. Dillon was a very hard-werking man, and there was no weakness about him, or lie ' would not have been on the job. To Mr Thomas: Dillon was in good health, as far as witness knew, for a week before the accident. Deceased worked two or three hours before ths accident occurred. When the truck was pushed the first time, it came back, in the foundation of the truck, as they had not a good enougli hold of it. Witness and Dillon wero working together on the night of the' accident. Grant was not working frith witness on that night. The box wes dragged up the incline from the excavation by, a winch. The deceased had , not cn any previous occasion complained to witness that, , lie wrs feeling- crook. W:tn!" r new' that the deceased was a winch-driver.

To Air Hannah':„'Tlie occasion of the accident was the first on . which witness had worked with, the deceased. The third man, Grant,,w s working the pumps. T’lie prmpa at*: the excavation was close to where witness was. ■•working. Witness d d not see Grant that night. Grant was probably, at the power house, working the pump there." Mi- Timings, handed -in a. statement made by. the witness, Adanison, to an injj'trapcg. representative, on .September out that in •the- statement,', thereywasv no mention of theii^iiek’-TfAiling- back- at -the firs: attempt to lift-.it,-To Air. Hannan .witness, said he made the . statement handed, in, in reoly to questions put -by. the insurance representative. To His Honour: The insurance man did not ask witness to tell all lie knew about, the accident. .Witness merely answered questions.. James Leonard Saunders said he worked at the top of the race on the night of the: accident. He saw deceased coming along the top of the race, and thinking this unusual, askd hem where lie was going He said he lied hurt himself and - was going home. The back .shift on which witness and the- deceased were working, started at 0 p.m.. Witness saw the deceased ?.t about-sayorpp’clock.

Stephen Harfcshprmt said that during} .the' progress of tl;©];]liydo works lie was foreman on the job. He saw deceased on the night of the accident. In reply to witness, deceased said he had kinked himself and was going home. Deceased, was one of the best workers on the job. The job lie was on was one of the heaviest jobs there. The night ,of the accident was the deceased’s first, time on trucking at that particular place. He had keen on the .-.trucking before, but- on other parts of the job. Immediately prior to that day he was engaged driving the winches.

To Mr Thomas: Witness told the insurance man that he had reported the matter to Mr .'McKay. Deceased had had previous accidents, but none serious. Deceased might have been off for a week before August 21, but witness did not know that. Witness made no other report on the deceased except the one on the 21st. Witness did not know that deceased was away from work for a week prior to August. .-21. Witness tobHiMcKay the afternoon following rthß.'laccident that tlije. deceased lidtaagSMTOOt-drimself. Witness did ,jMjtsr f t©ll- AjeKay ..that lie thought the]('deceased was “swinging the lead.” Witness was in the hospital with the deceased, and considered lie (witness) was suffering from strain from work. He did not get compensation, hut still considered lie was entitled to it.

His Honour said that the claim in the case before the Court was based <jn the assumption that the deceased injured his heart in tipping a truck on August 21 IG3I, and got progressively worse l , dying oil September 4, 1932, and that his death was the direct result of the strain. It was not disputed by anyone that a man might strain a diseased heart, but it wns not possible to strain a healthy heart. A diseased heart was a misfortune, to be affected with, and if it was'strain-

ed at work, then the claimant was entitled to compensation. Proof however, had to l be given to the Court that a definite strain had been received, which would cause further damage to the heart. That proof must be cogent and must carry with all. the . circumstances, and there must not be material contradictions in the evidence. ■They had conflicting statements as to what happened on August '2l. They had a definite, statement from deceased that he wasi too ill to come into town and had visited Br Mcßrearty, whose rr ideiice was of the utmCvSt importance because of the facts he observed and the statements made to h;m by deceased. Doctors might dTfer, as did lawyers, but in this case less than 24 hours after tie accident, tins man went to Dr Mcßrearty, and his heart wap absolutely regular, and he made no complaint of having sustained any strain. There was also the fact of deceased having made statements to [)r Mcßrearty, of having dizzy fits during the past fortnight, which showed they were not only apparent the night before, but previously. Then there was the question of the allege:' accident having occurred on August 11. They also had the evidence of Mr ICcddie, deceased having told him that be suffered from sleeplessness, and he sold deceased a’ sedative. There were contradictory statements and in view of these circumstances, it was impossible to say whether it was on Angus 1* which date was not alleged, or August 21, on which date it was alleged tli "t lie strained his heart. What was the most probable case and what was admitted by all of the doctors, was that deceased was doing w ork that WW too much for a di-ssased heart such as V. had, gradually getting to the stage where.-itr,eausf-dvthe -heart..to .develop symptoms. The Act, however, did not provide for compensation for a man whoso heart failed through disease and could not work any longer. There was a vast cl'jfcreme between a failing heart, .failing, to tackle work,' and a' damaged by some effort'or strain. Judgment must therefore) be for the defendant companv. Leave would be reserved to apply for costs.