EMPLOYERS' LIABILITY.

New Zealand Herald, Volume XLV, Issue 13926, 7 December 1908, Page 8

EMPLOYERS' LIABILITY.

A COMPENSATION CLAIM.

ARBITRATION COURT JUDGMENT. The Arbitration Court has delivered judgment in; the claim for compensation against the Union Company :by Albert Tienen, a fireman on the Wanaka, who alleged that he sustained a hernia while, engaged in shovelling coal on a voyage from Bluff . to Auckland. According to claimant's evidence, when he went on duty he proceeded to clean the fires, and was using a slice for the purpose. He put all his weight, he said, on the slice. It stuck in the clinker, and the end came up and struck the top of the furnace. Claimant said he felt a crack in his groin, and felt sore from his right knee up to his shoulder.

Tho judgment of tho Court is as follows: —

We are not satisfied that the hernia was caused in the way described by the claimant. If claimant had known how it- had been caused ho would have been able to tell tho engineers when they each interrogated him on the subject. This, apparently, he was not able to do, and we think that the statement now made by tho claimant as to the exact circumstances in which lie was injured really represent* the opinion formed by him after consideration as to how the injury must have been caused. To say that we are not satisfied to accept the •• claimant's story of how the injury was caused does not, however, dispose of the case. The claimant had been in the employment of the respondent company as a fireman off and on for 24 years. Until about the time when he says he met with the accident ho had been always able to do his work quite satisfactorily. The third engineer. Mr. Binns, deposed that lie had a conversation with the claimant on the way up the coast. Tho steam was not as it should have been, and Mr. Binns asked claimant what was tho matter with it. Claimant complained, Mr. Binns said, of great pain up and down his side. This appears to have been the first occasion on which any complaint was over made about the way in which claimant was doing his work. At the end of tho voyage he was discharged, suffering from hernia, which made it impossible for him to continue the work of a fireman. It is reasonable in these circumstances to conclude that the hernia must have been developed during the course of the voyage. Dr. Neil, who examined the claimant on behalf of the respondent, company,- said that the symptoms described by claimant, in his opinion, were not those of traumatic hernia, but indicated a case of nontraumatic hernia.

Although we do not accept claimant's statement- as to the circumstances in which, the injury was sustained, we. think it is reasonable to conclude that it was caused while the claimant was at work. It is not disputed that considerable muscular exertion is involved in the work of cleaning the fire, which is always done at the beginning of a watch. The" muscular exertion in which' claimant had to engage at. tin? beginning of his watch was quite sufficient, therefore, to produce the hernia. Claimant's statement that he suffered an injury at the beginning of a watch is corroborated by the evidence of the fireman Brown, who was on the watch immediately preceding claimant's. We conclude on" the evidence that the hernia from which claimant is suffering must have been caused by the muscular exertion in which he Lad to engage during the course of his work as a fireman. The question whether it was traumatic or non-traumatic seems to be quite immaterial. "Whether traumatic or non-trau-matic, if it was produced by. the strain of the work in which claimant was engaged as a fireman, then, according to the authorities, it is an injury by accident within the meaning .61' the Act. : '■:-■' J>'?;. ':'' s -We think the suggestion that the claim is not a.bonVfide one is not justified. If there had been any doubt as to the existence of the "hernia; before claimant left the steamer the case would have been different. But it is not disputed that the 'hernia existed before he left the steamer, and it is clear, we think, that it must have been developed during the course of the voyage. ••.' If claimant had desired to establish a claim against the respondent .in ' respect of an injury which had not arisen out of his ■ employment his conduct would have been different from what it was. .He would have been ready with an explanation as to'the circumstances in which the injury was sustained, showing that •it had honpened during tho course of his work- Fil. wr, he would have claimed the benefit of the Shipping and Seaman Act, 1905, when he left the steamer in Auckland. But he did not do this. The reason why the claimant said so little' about his injury appears to have been that he did not regard it as serious.' He hoped to get well again after a short rest, and.to be able to return to work again in tho respondent's service. He evidently did not wish to damage his chance of getting further employment by making much of bis injury. It was only when he did not got better, and after he had been examined by Dr. Hooper at the end of May, that the idea m i making & claim against the '■ respondent appears to have occurred to him. The respondent relies on the defence that notice of the-accident was hot given to tho respondent as required by section 12 of the Act. It is admitted that this notice was not given. The Act provides, however, that the want of such', notice shall not be a bar to the maintenance of the proceedings if it is found in the proceedings for settling the claim that the employer is not prejudiced in "his defence by such want, or that the same was occasioned by mistake or other reasonable cause. The only way in which it is suggested the respondent is prejudiced is that an examination made shortly after the accident would have enabled a doctor to say whether the hernia had been produced recently or not, while at the date when notice was,first given, viz., June 9 last, it was impossible to determine by /examination how lone the hernia lasted. But, as we have already said, the, hernia must, in our opinion, have been caused during - the voyage from the Bluff to Auckland. The three engineers aIL knew that the, claimant was suffering from hernia when ' he , was "discharged in Auckland. ' Although claimant' could not tell ttiem how it had been caused they could have ascertained from claimant whether he thought it had been produced wnile he was at work. = If it was produced while : he was at work then there was a probability of the respondent being held liable to com- . pensate t'iio; cliimant. We think that, in these circumstances, the -, respondent had, through to officers, notice of facts which might result in a claim * being made, and that, apart* from -any considerations of humanity, the respondent, as 'an ordinary precaution, ought to have had the claimant examined by, a doctor when he was discharged in Auckland. the respondent has been , prejudiced by not 1 having had an earlier examination of claimant,, the failure to have that examination made ought, not to be ascribed to the want of a proper notice from the- claimant. We think, however, that in the circumstances the respondent has not been really prejudiced in its defence by not having had an earlier medical examination of claimant, and that the want of a proper notice is not of any importance. The claimant is entitled to succeed therefore, notwithstanding the want of such notice. The average of claimant's weekly earnings while at work during the 12 months previous to the accident was £2 10s per week. Wo order the respondent to pay to the claimant the weekly sum of £1 ss, calculated !rom March 13,1908, during his total or parial incapacity, until such payments shall be .edeemed, ended, diminished, or increased in accordance with the provisions of the Act. Wo recommend the claimant to submit to the operation advised by Dr. Hooper and Dr. Neil. Claimant was allowed coete amounting to £10 10s, with di.sbuinements and witnesses' expenses. Mr. McGregor appeared for claimant and Mr. MeVcagh for respondent company.