CLAIM FAILS

Otago Daily Times, Issue 23885, 12 August 1939, Page 19

CLAIM FAILS

* WATERSIDE WORKER JUDGMENT OF ARBITRATION COURT CASE FOR COMPENSATION Judgment for the defendant has been delivered by the Arbitration Court in the case in which Charles Ernest Frost, a waterside worker, claimed compensation payments from the New Zealand Shipping Company. The claim was that while working on the Dunedin wharf on July 31 of last year Frost suffered an injury to his heart while hauling on the mooring lines of the Cornwall. The plaintiffs statement set out that he was totally incapicated from August 25 to November 14. and since the latter date he had been, and always would be. partially incapicated. The defence was a denial that his condition arouse out of, or in the course of. his employment. Mr Justice Callan presided at the hearing and had Mr W. Cecil Prime and Mr A. L. Monteith associated with him. Mr F B. Adams appeared for the plaintiff and Mr I B, Stevenson represented the defendant company. The judgment of the court, delivered by Mr Justice Callan, states, inter alia:— Basis of Claim "The plaintiff, who- is aged 56, has worked on the waterfront for 34 years. We accept the evidence that up to July 31, 1938, he had experienced no difficulty in doing any class of work that was to be done on the waterfront. On Sunday. July 31, 1938, at 8 a.m he was engaged-with two other men taking the lines of the Cornwall. It was made clear to the court that the effort involved in raising the hawser to the wharf and a further effort involved in ’pulling the rope over the top of other ropes after it had been got on to the wharf constituted heavy work, in the course of which the plaintiff used considerable exertion. He had just completed the second effort when he felt a' sharp pain in his chest, turned round, walked only a couple of yards, and collapsed more or less unconscious. He was got to his home, and he remained there the rest of the day—Sunday.. Next day, Monday, he did the hatchman’s job on the Cornwall. He did the same job on the Tuesday until about 4 or 5 p.m. He says he felt all right on the Monday and Tuesday; that he cannot say he felt- ill hut that under pressure from his wife he saw Dr Allen on the Tuesday evening. Dr Allen diagnosed advanced valvular disease of the heart. He connected the plaintiff’s collapse on the wharf on the Sunday morning with the.work he had then been doing and warned him against doing anything strenuous in future. With one exception, the plaintiff had since then limited himself to the lighter kinds of waterfront work, and has worked less frequently. According to him. his inability to work is not so much because of the pain as because of the weakness resulting when he works. ‘-We have no difficulty in attributing the collapse which the plaintiff suffered on the . wharf to the exertions which he made at the time. . But that conclusion does not in itself warrant acceptance' of the claim that is made for him. The question remains whether the evidence warrants an inference that his working life_ has Uon shortened by the accident arising out of and in the.course of his employment , which . happened on that date: or. to but it • another way. whether his diminished earning capacity which has-been apparent since that date is attributable to that accident or is due solely to the progress of the disease from which he was already suffering before that ■ date, though he did not himself know it. Question of Incapacity After reviewing the medical evidence. the judgment .continues: The, case is distinguishable from Armstrong’s case. upon which counsel for the plaintiff relies by this circumstance—that in that case the plaintiff went home immediately aftar his collapse just as this plaintiff did. but he went to bed immediately anti remained there for a fortnight, and he did no work at all between the accident and the hearing'of his case which was a r.eriod of 12 months. These are facts in marked contradistinction from the facts in this case., and from, the testimony of this plaintiff that he himself felt all rieht on the Mondav and Tuesday following the accident and cannot sav he felt ill. t The circumstances and subsequent history of the man in Armstrong’s case assisted in drawing an inference which cannot here be safely drawn. What the plaintiff must establish is that his working capacity has been reduced, or the duration of his ’ working life has been shortened by the accident of July 31, 1938. In one sense, it may be true that because of the occurrence of this accident he has, since it happened, done less work on the waterfront than he probably would have done had the accident not happened. It may also be true' that by reason of the accident his, days for really hard work on the waterfront have .been shortened. But in so far as this arises from his own prudent decision consequent upon the medical advice he received and the revelation of the diseased state bis heart which was previously unsuspected by him, it is not in our view a proper subject for compensation. It does not arise from an incapacity to work, but from a decision mot to work because of the discovery.that there existed a disease which rendered continuous heavy work dangerous to him No physical or even neurasthenic incapacity arising from the accident was satisfactorily proved, even when that aspect is approached by "considering how the balance of probabilities lies between the medical witnesses in so far as they are in conflict.

“ The two medical witnesses for the defence are against the existence of any such resultant incapacity, and their views'as to that are more in accord with authoritative medical opinion than are the views advanped to the contrary by two of the plaintiff’s three medical witnesses. Dr Allan, who saw and examined him shortly after the accident gives no support to the suggestion that there is any resultant incapacity due to the accident and not due solely to the progress of the disease. Of his two witnesses who have expressed an opinion favourable to this necessary branch of the plaintiff’s case, neither supports his view by quotation from any recognised authority, and Dr D’Ath’s view, which is entitled to great respect, when closely examined, does not seem to amount to more than that there must have been some permanent physical change consequent on the accident of July 1, 1938, but really leaves it quite at large whether such change if it existed, would be more than something so slight and intangible as not to be capable of supporting a claim to compensation.” Leave was reserved to the defendant to apply for costs. ,