Bush Accident is Recalled in Court

Manawatu Times, Volume 60, Issue 91, 18 April 1935, Page 5

Bush Accident is Recalled in Court

CLAIM FOR COMPENSATION,

'While engaged ia dismantling an overhead sky-line and tram-line at Murimotu, near Taihape, a buslunan named Albert John Hcrkt had his right leg fractured below the knee as a result of which he has since been totally disabled for working. The accident happened on October 25, 1934, while he was w r orking as an employee of his wifo who had contracted with the Murimotu Sawmilling Coy., Ltd., to remove the sky-line and tram-line. In tho'Arbitration Court in Palmerston North yesterday, Hcrkt proceeded against the company claiming compensation at tho rate of £4 per week since tho date of tho mishap.

The company’s reply to the action was that a receiver for the Bank of Now Zealand entered into tho contract with Mrs Herkt to do the work but for and on behalf ot plaintiff. If, however, plaintiff was in tho employ of his wife, then the work at which plaintiff was employed when the mishap occurred, was not the business of the company.

Mr P. J. O’Regan (Wellington) appeared for plaintiff and Mr A. L, Tompkins (Hamilton) for the defendant company.

Mr o’.Regan said tho explanation as to why Mrs Hcrkt had taken out the contract, was that plaintiff was an undischarged bankrupt. So the contract had been made out in her name and Hcrkt did tho work. In evidence Mrs Herkt said she had employed her husband at £1 a day and her son at 15s a day, to do the work of removing the tram-line and sky-line. This was not the first time she had entered into similar contracts with sawmilling companies.

Plaintiff, in evidence, said the contract agreement set out that the company was not to bo held responsible for accidents and Mrs Herkt had taken out a policy but it had since been discovered that the policy was ineffective as between husband and wife.

A report from a Taihape medico was presented, showing that the disability suffered by plaintiff was two-thirds of the full value of the limb.

Called by the defence, however, Dr. E. C. Barnett thought Herkt lhad had a wonderful re-union of both broken bones. This was revealed by X-ray photographs and in tho doctor’s opinion, plaintiff had lost about 10 per cent of tho full value of the lower portion of the leg. T. C. Kincaid, solicitor, of Taihape, stated that as receiver for the company he had been instructed to realise on the assets. He had approached Herkt in regard to the rope and tramline and plaintiff had arrived at what he would charge for the jobs but had asked that tho contract go in his wife’s name as plaintiff was an undischarged bankrupt. Witness added that lie had told Herkt that he expected him to take out an accident risk but to be on the safe side, witness had also taken out a policy. He took Mr Herkt’s working for his wife as quite bona fide.

Counsel submitted legal argument and the Court held that it had been proved that Herkt was an employee of his wife and considered plaintiff entitled to full compensation up to the present date and for a further two months. After that compensation would be for 6 per cent, disability for the remainder of the period of liability (six years). Wages were fixed at £6 a week. Costs wero £S Ss.