CLAIM FOR DAMAGES

Northern Advocate, 3 September 1913, Page 3

CLAIM FOR DAMAGES

COMPENSATION TO WORKERS LOSS OF A FINGER.

The Stipendiary Magistrate (Mr E. Page) gave judgment yesterday in the case Leech v. Lovatt, a claim for

£100 damages for loss of a finger while plaintiff was engaged at defendant's sawmill. At the hearing, which took place on August 19th, Mr Briggs appeared for plaintiff and Mr Pickmere for defendant.

The statement of claim alleged: (1 ) That the defendant is a sawmiller carrying on business at Whangarei and that the plaintiff was in the employ of the defendant on the 11 th June last. (2) That the defendant negligently allowed a truck to be used at the circular saw bench in such mill which truck was unsafe in that, it was likely to overturn if a chip of wood or other obstruction happened to be in.front of the wheels. ('.'>> That in consequence of such truck being unsafe, a flitch of timber •which was being cut on the bench was thrown on to the plaintiff's fingers through such truck suddenly overturning. (4) That in consequenceof such occurrence the plaintiff has lost the top joint of the third finger of bis right hand and the middle finger has been crushed and is almost, useless. (i>) Wherefore the plaintiff claims the sum of .£99 as damages for such negligence of the defendant and also the sum of £1, being the medical expenses claimable by the defendant under "The Workers, Compensation Act, 1908," and its amendments. In giving judgment his Worship said:—The material facts of the case are not in dispute. The defendant, who is not a practical sawmiller, employs a manager (a Mr Strugnell) who lias complete control of the sawmilLand plant and to whom the employees look for their orders and instructions. The plaintiff was employed as "tailer out," his main duty being to receive and handle the timber as it came off the circular saw. The manager (Strugnell) was benchman, the henchman's duty being to i'eed the timber on to the saw. Heavy timber was taken off the saw by means of a small four-wheeled truck or bogey which ran from the bench on rails, a similar bogey running on similar rails was used by the benehman to bring the timber up to the bench and to feed it on to the saw. The bogey from its side view was triangular in shape, the base of the triangle being the line between the front and back wheels. The framework of it tapered away to the top, the apex of the triangle. Timber resting on the top of the bogey was thus resting on a thin edge. In type the bogey was similar to that commonly used for the purpose in other sawmills. With regard to dimensions, the top of the bogey stood 2 feet '.i inches above the rails and the distance between the front and back wheels was 10 inches. The bogey was moved along the rails by the forward pressure of the timber resting on the top of it.

Some months before the plaintiff entered the defendant's service, an accident similar in nature to the one now in question happened to the manager (Strugnell) while he was using his bogey. Either some chip or other obstruction got on to the line of rail or the bogey wheels as a result, of such pressure jambed on the rails. The result was that the wheels being blocked or jambed, the forward pressure of heavy timber on the top of the bogey caused it to cant forward and immediately to fall over forward on its face. The timber caught Strugnell's foot as it fell and he was laid up for a month. In conseuence of this mishap Strugnell had his bogey altered. He put larger wheels on and he considerably increased the span between the front and back wheels. While this was being done the defendant mentioned to Strugnell the question of also alter-

ing the bogey used by the tailer out, but Strugnell considered it unnecessary and such bogey was allowed to remain as it was.

Subsequently an employee named E. Fairburn was working , as "tailer out." On two occasions while he was so employed a similar mishap occurred. The bogey fell forward on its face, letting the timber down.

Fairburn was not injured and did not. complain of the matter, but Strugnell (the manager) was benchman on both occasions and witnessed the mishaps The plaintiff was employed as tailer out for some seven months before the accident; when taken on he was quite ignorant of sawmill work, having been a farmer by occupation. Twice before the accident a similar mishap occurred while the plaintiff was tailing out, but the plaintiff was uninjured. On both occasions he complained to the manager that the bogey was unsafe By way of a reply he was sworn at, and he went on with his work, rather than lose his billet. He did not then know of the previous mishap to Strugnell. On the occasion of the accident the bogey fell forward in the same way. The flitch that it was carrying was estimated to weigh about a ton. The plaintiff, as was customary and proper, had hold of the flitch with one hand underneath it. This hand was crushed. Since the accident this bogey had also been altered and the span between the front and back wheels had been increased from .10 inches to 18 inches.

This action is brought, at common law, independently of the provisions of the Workers' Compensation Acts.

(The right of action at common law by a servant against his master for negligence is not taken away by the Workers' Compensation Act. See section 43, s.s. 1 of "The Workers' Compensation Act. 190 S.")

In the present case personal negligence on the part of the defendant is, in my opinion, clearly established. The dimensions of the bogey were shown to be, and were, 1 think, on the face of them such as to render it unsafe. There was but 10 inches between centres of front and back wheels. The height of the bogey was 2ft. 3in. and the only means of propulsion of the bogey was by the forward pressure of the heavy timber resting on the top of it. The defendant, moreover, had had warning in the accident to his manager that the bogey was unsafe. The manager has on four occasions seen the bogey of the tailer-out come to grief, and "the manager was negligent in not having the defective plant remedied. The rule as to common employment was abolished by section i\-2 of the W.C. Act. 1908, and the defendant is liable for the negligence of his manager.

Several important questions are raised by the defence on these proceedings.

1. The maxim volenti non fit injuria applies, it is urged, to these proceedings. It is contended that the plaintiff, having become aware through actual experience! that the bogey was likely to capsize chose voluntarily to run the risk of an accident happening to himself, and that therefore he cannot recover. In my opinion this objection cannot be sustained. In the present case the danger was not inherent, in the nalure of the work, but as the result of negligence on the part of the defendant in negligently supplying unsafe plant and negligently failing to remedy such plant. The facts show that the plaintiff did not voluntarily run the risks of injury. On the contrary he complained unavailingly on two previous occasions. His only remedy was to leave the employ and lose his billet, and it is clear that, if in such circumstances he stays on it is not necessarily to be held that, he voluntarily incurred this risk. The maxim "volenti not fit injuria" does not, in my opinion, apply to these ■circumstances, the plaintiff having satisfactorily shown that he did uoi voluntarily incur the risk. Sec Undfoll on torts, (jth edn., i>. r>64. See Hevin on negligence, 3rd edn., p. c::T. See Smith v. Baker, 1891, a.c. :):>'!.

2. It is said that the plaintiff has been guilty of contributory negligence. (a) In allowing his hand to get crushed when the truck fell. (ta) In not keeping clear of chips the rail on which the bogey ran. As to the first it was necessary for the practical handling of the flitches of timber that) the tailer-out should place his hands or one of them underneath the flitch. He cannot be guilty of, negligence through failing when a sudden emergency arises to get Tiimself clear even though a more active or a cooler-headed man might have got clear. (Pollock on torts ttth edn., p. 490). Moreover, it is not clear that any active man could have avoided injury to himself. The manager himself, under somewhat similar conditions, sustained injury.

As to the second matter, it is not clear whether the bogey fell over as the rosult of some obstruction on the

line or :is the result of wheels jambing. It is, I think, inevitable that chilis will, in such surroundings, occasionally get on to the rails, however reasonably careful the workmen may lie. J think there is no contributory negligence on the part of plaintiff lias been shown.

:;. It is urged that in this case the Iplaintiff has two remedies —one ..at common law and one under the Workers' Compensation Act, and that he lias elected to adopt his remedy under the Workers' Compensation Act and cannot proceed at common law. The evidence offered in support of such election is production of .a receipt, signed by the plaintiff in the following words: —-"Received from the Norwich Union and London Accident Insurance Association the sum of four pounds ten shillings, being in payment of four weeks half-average weekly earnings from June 11 th to July !>rh, 11»13, in respect of accident sustained by me whilst in the employ of Mr Charles Robert Lovatt, of Whangarei.—Percy Leech, 'I'.i/l/U',." This is relied on as constituting such an election as would be the right of the plaintiff to succeed in an action at common law. In my opinion this is not sufficient to constitute such an election. (See Clerk and Lindsell on torts, Gth edn., p. 17G). Section 43 of the Workers' Compensation Act, 190S, provides that any sum received by a worker by way of compensation shall be deducted from the sum recoverable by way of damages in respect of the same accident!

Judgment must go in the plaintiff's favour. As to the claim for £1 medical expenses the claim will be amended by striking out -this item. With regard to the measure of damages neither the section r> of the Workers' Compensation Act nor the second schedule to the Act are to be regarded as the basis in assessing the damages in an action at common law. I assess the damages which the plaintiff has sustained at £35, and judgment will be. for plaintiff for that amount, less the sum of £4 10s paid by the defendant. Costs to scale will be allowed to plaintiff