COURT OF APPEAL

Southland Times, Issue 21579, 17 December 1931, Page 7

COURT OF APPEAL

JUDGMENTS ISSUED

WORKERS’ COMPENSATION

CTiATM FAILS

(For United Press Association),

Wellington, December 18.

In the cases of Thomas Borthwick and Sons (Aust.) Ltd., v. Thomas Ryan, a slaughterman, the Appeal Court ga»e judgment in favour of the employers in each case, the judgment holding that the accidents did not arise out of the course of employment. The Chief Justice, in giving his judgment in favour of plaintiff employers, said that in his opinion on the facts actually before the Court, the accidents which caused the injuries did not arise out of employment on the ground that the injuries were caused by a general catastrophe and that all persons within the area affected by the earthquake were exposed to the same risk. The danger was common to all and the facts before the Court did not show any special exposure to risk by the injured workers due to incidents of their employment. The position would be different if workers, by reason of incidents of their employment, were exposed to the risk of injuries greater than to which the public generally were subject, and the injury actually suffered was caused or accentuated by such incidents. The fact that the buildings were wholly and patrially destroyed could not be regarded per se as proof of defective construction.

Justices Ostler, Adams and Smith delivered judgments concurring with the Chief Justice.

Mr Justice Reid arrived at a somewhat different conclusion, holding that the fact that the contributing couse of the injuries was the earthquake did not of itself prevent injured workers from recovering compensation. Workers were entitled if they could show the building where they were working or required to be was defectively constructed to claim compensation. He held that in addition to the facts before the Court, Prendergast was entitled to compensation in accordance with the judgment of the majority. The answer of the Court to the question before it was that in each case, on the facts stated, the accident did not arise out of the course of employment.

A message of September 30 stated: Very interesting questions relative to the workers’ compensation law, arising out of the Hawkes Bay earthquake, are occupying the attention of the Court of Appeal. The plaintiff Is Thomas Borthwick and Sons (Aus.), Ltd., and the defendant John Ryan, slaughterman, of Hastings. At the time of the earthquake on February 3, Ryan was employed by the plaintiff company as a slaughterman at. its works at Pakipaki, near Hastings, and was actually killing on the second floor when the earthquake took place. The building thereupon collapsed and Ryan was covered with debris, and fully ten minutes elapsed before he was extricated, his injuries including several fractured ribs, ,a crushing of the chest, and shock, in consequence of which he has since been totally disabled from working. The plaintiff company seeks by virtue of the Declaratory Judgments Act answers to questions whether the injury received by Ryan was "an accident” within the meaning of the Workers’ Compensation Act, 1922, and, if so, whether the accident, arose out of and in the course of his employment. On the answers to these questions depends the liability of the company to pay compensation. Similar questions are being asked in the cases of Borthwick and Sons (Aus.), Ltd., v. Margaret Brooker; Brennan and Manning, of Napier (hotelkeepers) v. Philomena Mary Ashwell; Nelson (N.Z.), Ltd. v. John Prendergast, which are being heard at the same time. In Brooker’s case the husband of defendant was working at Pakipaki works and was killed by fulling debris. The husband of the defendant Ashwcll was a porter employed at the Clarendon Hotel, Napier, and was killed by a falling building while on a message for his employers. Prendergast was employed by Nelson (N.Z.), Ltd., as a shepherd at the Tomoana works and was injured and disabled for fourteen weeks. FINES~BEI)UCED O. F. NELSON AND CO., LTD.’S, APPEAL Wellington, December 16 The judgment of the Rt. lion. Sir Michael Myers, Chief Justice, and Justices Reid and Adams was delivered by the Chief Justice in the case of Nelson and Co., Ltd., against the police in the Court of Appeal this morning.

His Honour held that, except in those cases where such a construction was impossible, the word “person” in the regulations in question included company in addition. Despite the admission of the Solicitor-General at the trial that the company could not be guilty of mens rea, this company was rightly convicted under the regulations. Consequently the appeal should be dismissed and the conviction should stand.

In his opinion the penalties imposed by the Chief Judge of Samoa were excessive and the fines should bo reduced to £2OO on the first charge and £lO on every other charge. Mr Justice Ostler, in a dissenting judgment, held that the appeal should be allowed, as once it was admitted that mens rea was the necessary" ingredient of a charge then it was clear to him that the company could not be convicted. Judgment was entered in accordance with the decision of the majority of the Court.

Tire appeal case O. F. Nelson and Co., Ltd, v. Police (Western Samoa) was before the Full Court at Wellington on October 15. An information was laid by the Samoan police in January charging the company with 28 different breaches of the Samoan regulations of January, 1930, in that it had “participated in and aided, abetted and encouraged the activities of a seditious organization, to wit, the Mau, by receiving various sums of money on its behalf.” The company was found guilty and convicted by Chief Judge- Luxford, of the Western Samoan High Court, and fined the maximum penalty of £2OO on each charge, making the total fine £5600. The company appealed from that judgment. MOTOR TRUCK BURNT RENEWAL OF INSURANCE. Wellington, December 16. In delivering judgment in dismissing the appeal in the case of Leyland Motors, Ltd, v. Stephen Pilcher, in the Court of Appeal this morning, Sir Michael Myers, Chief Justice, held that there was a contract between the appellant company and respondent which had been broken by appellant causing damage to respondent. Consequently, in his opinion, the judgment of the Court below should stand, and the appeal should be dismissed. Other members of the Bench concurred with the judgment of the Chief Justice. The appeal was dismissed with the costs on the middle scale.

A Wellington message of October 20 stated: The Appeal Court to-day is hearing an appeal by Leyland Motors, Ltd, against the judgment of Mr Justice Reed for £342 SZ-, the value of a motor truck destroyed by fire when hired by Stephen Pilcher, a carrier of Wellington. Pilcher had the truck under a hire-purchase agreement, and when the insurance ran out the company agreed to have it renewed with the insurance company, but when the vehicle was burnt it was discovered that there was no enforceable insurance policy on the vehicle. Pilcher then sued Leyland Motors and was given judgement for £342.