COMPENSATION CLAIM.

Otago Daily Times, Issue 21148, 4 October 1930, Page 20

COMPENSATION CLAIM.

PARKHILL v. SCAIFE. JUDGMENT FOR DEFENDANT. The following ia the judgment of the Arbitration Court in the case fn which Henry Parkhill (of Pembroke, shephard) claimed compensation from Noel Francis Scaife (of Glendhu, sheepfarmer):— The plaintiff is a musterer, and the defendant, who is the owner of Glendhu Station, Lake Wanaka, employed him on bis station during the month of April, 1930. The plaintiff’s story is that on the I3th of that month, while he was mustering the defendant’s sheep, he found a young dog worrying a sheep. The dog was plaintiff’s own property, and was being trained by him as a sheep dog. The plaintiff decided to destroy the dog, and when he had finished work for the day and had tied up his dogs, he took his gun and walked in the direction of the kennels, intending to shoot the animal. As he was getting through a wire fence, the gun was accidentally discharged, and the plaintiff’s left index finger was partly blown off, and had to be amputated. It is in respect of this injury that the plaintiff claims compensation. The plaintiff’s version of the accident is entirely without corroboration. The sheep that he said had been worried by the dog got away, and was not afterwards found. It is true that, after he had been some days in hospital, the Slaintiff sent word to a friend asking im to shoot the dog; but, immediately after the accident; he had told the defendant that his reason for wishing to shoot the dog was that it was useless. He did not mention the circumstance that it had worried a sheep, but be explains this omission by saying that he thought that he might be held liable for the value of the sheep, if it died. Though the dog had not previously been found worrying sheep, the plaintiff insisted that he intended'to destroy it, and he stated that he had destroyed other dogs after he had found them worrying sheep for the first time. He admitted that other owners of dogs had found that, a good thrashing often cured a dog of an incipient tendency to worry sheep, and that it was often possible to train a dog that had shown a disposition to worry sheep, as a cattle dog. It is in the plaintiff’s favour that the wire .fence, through which he was crawling when hie gun was discharged, was between his sleeping quarters, and the kennels, where the dog was chained. This circumstance, though it indicates that he probably intended to shoot the dog, does not, however, throw any light on the question as to whether he intended to shoot it because it had proved to be a dangerous dog, or merely because it was a useless dog, and not worth training. The dog at this time was about IS months old.

If we assume in the plaintiff*? favour, that the dog had worried one of the defendant’s sheep, that ho had decided to shoot it for that reason, and that ho was injured while carrying a gun for that purpose, we have still to decide whether the accident arose out of and in the course of his employment. It is a term of the musterer’a contract of service that he is to provide himself with a team of trained dogs. The employer supplies food for the dogs, but has no further, responsibility in respect of them. Some sheep-owners do not permit young doge to be trained on their stations; and where a musterer is permitted, expressly or tacitly, to bring a young dog on to a station for training, the permission confers a limited privilege only. The training of a dog renders it more valuable to the muaterer whose property it is, and if a dog is found to be dangerous or useless the musterer has no right to keep it on the station any longer, but must destroy or remove it.

If the plaintiff had had a gun with him when he found the dog worrying a sheep, and had shot it then and there, it might have been argued that the shootmg of the dog was an act done for the protection of his employer’s property, and was accordingly an incident of his employment. If, however, as the plaintiff alleges, he had taken the dog back to the kennels, and had decided that he would destroy it that evening, can it be said that the shooting of the dog in those circumstances was an incident of his employment! Was the destruction of the dog an act done in pursuance of a duty, or even an act reasonably Incidental to a duty, that he owed to his employer, qua employer, under his contract of service ? ■ He had brought it on to the station for his own purposes j n . d ., f ® r , hia . ow n benefit, and he had decided that it was dangerous and usoleas. His privilege of keeping the dog on the station had ceased to exist. He realised that if it worried any more sheep he would probably be held liable for damages, and he came to the conclusion that the wisest thing to do with the animal was to_ shoot it. His object was principally to rid himself of a useless dog, which he considered was not worth training any further, and to save himself from possible pecuniary loss arising from its depredations; only very remotely was his object to protect his employer’s property. The plaintiff’s injury was due to an accident that arose out of the incidents of a privilege that he enjoyed, and out of an act done in furtherance of his own interests; and the court cannot find that the accident arose out of anything that was unambiguously or reasonably refer- • his emplo^men t, as was the case m White v. Borrie and Brown v. Bast Coast Rabbit Trustees. Judgnmnt will be entered for the defendant, and leave reserved to him to apply for costs. , ¥*l, ° ,R «Ban appeared for the Plaintiff; Mr W. G. Hay for the defendant.