A CLAIM DISMISSED.

Marlborough Express, Volume XLVII, Issue 142, 18 June 1913, Page 3

A CLAIM DISMISSED.

! ACCIDENT AT MARLBOROUGH

SHOW.

COURT DECLARES NO CAUSE OF

ACTION

Sitting in Chambers in the Supreme ] Court at Wellington on Saturday, his ■ Honor the Chief Justice (Sir Robert ; Stout) delivered his reserved decision j on a motion to dismiss a claim by ; Leonard Home against Dalgety and \ Co. for damages for injuries. It was j set out in the statement of claim that j the defendant company employed an ; engineer (H. S. Home) to attend and • run at the Agricultural atnd Pastoral , Association's show at Blenheim a j sheep-shearing machine driven by a : Tangye oil-engine. H. S. Home got J caught in the machinery, and was in i danger of losing his life, when plain- j tiff (his brother) went to his assist- ) ance and was injured. It was con- i tended that the company was bound i by section 13 of the Inspection of .' Machinery Act, 1908, and its amend- ! ments to have every part of the ' machinery securely fenced, and that the company was guilty of a breach of \ the statutory duty. j His Honor, in his judgment, said j that in the case certain questions of ] law had to be argued before the trial ■ of the action. These were: (1) Does < the statement of claim, assuming1 the [ facts to be true, disclose a cause of | action? (2) Would contributory negligence (if any) on the part of H. S. Home be a good answer to plaintiff's claim? (3) What objection (if any) rested upon the defendant by law to fence all or any part of the cam or j timing shaft of the said machine? 1 The important question, continued \ his Honor, was as follows:—"Wasj there a breach of statutory duty in not fencing the oil engine? Section 13 (1) of the Inspection of Machinery Act, 1908, was as follows: cEvery fly-wheel directly connected with the steam engine or the water wheel or any other mechanical power, whether in the engine house or not, every part of a steam engine and water wheel and every hydraulic or other lift near to which any person is liable to pass or be employed shall be securely fenced, and every wheel-race not otherwise secured shall be fenced close to the edge of the wheel-race and the said protection to each part shall not be removed while the parts required jto be fenced are in motion by the I action of the steam engine, water wheel, or other mechanical power." The first part of section 13 was in- j applicable, as the non-fencing of the | fly-wheel had'nothing to do with the j accident. Reliance was placed on the ! following section of the clause: —j "Every part of a steam engine and water-wheel and every hydraulic or other lift near to which any person is liable to pass or be employed shall be securely fenced." His Honor was of opinion that the second part of the section did not apply to an oil engine. An oil-engine was not a steam engine or a water wheel, or a hydraulic or other lift. There was therefore, in his Honor's opinion, no breach of any statutory duty; and that was the charge upon which the plaintiff relied. It was admitted that the whole machinery was fenced off from the public and that the public could not get at the engine without going over hurdles placed; round it. After reviewing the American authorities cited by counsel in support of his contention that the plaintiff was of necessity a servant of the defendant end was entitled to recover damages, the Chief Justice concluded: —"It will thus be seen that on the authorities negligence is an essential preliminary to the right of plaintiff to recover. In my opinion, therefore, as there is no negligence of the defendant company leading to the > injury, the statement of claim does not disclose any cause of action. There is no need to answer the other questions."