INJURY TO A FISHERMAN

Taranaki Daily News, 19 December 1930, Page 3

INJURY TO A FISHERMAN

CLAIM FROM HARBOUR BOARD ARGUMENT ON THE LEGAL ASPECTS. MAY STEPS BE USED AS A RIGHT? Some points of law concerning the rights of the board as opposed to those fishermen and others tiding the harbour at New Plymouth were argued before Mr. R. W. Tate, S.M, yesterday on a clainl, based on alleged negligence, brought by George Frederick Loader against the Harbour Board for £B7 damages for an injury received from a log that fell on him from the breakwater on August 18. The magistrate reserved his decision. The evidence heard a week ago disclosed that A. L. Allen owned a launch and that he and Loader, his. brother-in-law, were returning from fishing at the time of the accident. They were drawing in to the steps at the root of .the breakwater to land crayfishing gear. Just before reaching the steps a large piece of totara fell from the breakwater on to Loader, injuring himi so seriously that he was sent to the .hospital. Rebutting the submission of the board that Loader was a trespasser, Mr., G. H. . Weston produced correspondence between the harbourmaster and Allen, owner of the launch, and secretary of the fishermen’s association,., a copy of the board’s minutes of meetings on February 14, 1928, and March 20, 1930, and a newspaper report amplifying th.e minutes of the latter meeting. On July 14, 1926, the harbourmaster wrote • Allen, pointing out his launch was :in the fairway: to the Newtop King wharf, and asking him to move it immediately 100 feet further' out. Another letter asked him to remove his launch to the mooring ground east of the Newton King- wharf, and a later letter said that the owner’s failure to move the boat constituted a breach of the 1 board’s by-laws. The newspaper report showed that the board had discussed the’ difficulties occasioned by the mooring of. small craft in the fairway. A ;.by-law was suggested by Captain. Waller, who said the main ohject was to keep; the fairwky clear. As a by-law would take six months to put'into force the erection of a “by order” notice would serve the purpose,, and it was decided'.to act on this suggestion and to 'defer the question of a by-law.

NEVER INTENDED FOR THE ST®?S

“We' say these references show the board never intended to prohibit the use of the steps by,launches,” said |lr. Weston, “but to 'stop, them mooring there.”. - 7 ; ' On behalf of the board Mr. R. H. Quilliam submitted that'negligence had not been established against/the board. Salmond defined negligence as a breach, of the.legal duty .to take care, and pointed out that the standard of care required by law was a matter of degree According to the circumstances of the particular case. It was submitted there had been no negligence and no breach of the standard of care required from the board’s employees. . ‘ It was plain that the piece of timber involved iu the accident.had been lying on the breakwater a very long time, near the bin and close to the rails. The timber had not been put there the day before; it was necessary to keep that in mind. It was known to the persons using the breakwater.-, that there were rails on the. breakwater and that engines used them. Loader .and Allen both admitted having seen this timber lying close to the rails for 'longTime. , The ; ?tateriient .of claim alleged that the.aqts .of negligence.w£re, firstly, that the timber 'should not have been left near the rails, and, secondly, that' the driver should; have realised the danger of-sweeping it jhto the harbour. Counsel reiterated that the timber had been close to the rails for a considerable, tirpe. and that this was known to Allen and Loader.- Before the top, of the crane was .turned. round the driver and his assistant had a'good view-of the line down to the bi.n;.„they sajd they saw nothing to indicate danger; When the crane tyas turned round and hacked,, to the ?bin Fisher, the assistant, was on the eastern side, .with . a good view still he saw nothing.dangerous.. It wap known that, the ergne actually passed the spot , where the. tiiv.ber was, apd 10 or 15 minutes later Fisher left the crane, walked past,.the, place where the timber was,' but noticed .nothing, of im; portance. Then the,.crane moved' along, picked up and dragged a piece of timber about 30 feet until it fell over the steps iptp the water. .. It', was fair ; to .assume . that, neither Allen nor Lop let appreciated at any time that'; the timber constituted p possible danger. If the court were entitled to assume that, there was nothing unreasonable in the board employees not appreciating a danger. ; Indeed, the very fact that the timber had been there, so long without .causing trouble would juptify them in this - W4X thinking.. The breakwater was not a,'wharf where peyt sons went on business,, and it was ,plain, that, on. a .structure of. this kind things would be lying about; personsusing the breakwater, could see them. . ;. COULD IT HAVE BEEN!. FORESEEN. Assuming that -it had occurred . to somebody that the timber, was in a dangerous position, was it reasonable ■ to contend that what happened on August 18 was likely to happen? Counsel submitted that the possibility; of; the Timber being dragged because of- its 'proximity to the rails would'never, have occurred to any reasonable person. It would be reasonable to expect that the passage of the crane- might be .inter? fered with, but 1 not that the. timber would be dragged 30 feet and <wer -the side-of-the breakwater.;. Regarding the allegation that The driver was negligent, in not keeping a proper : look-out, the, facts spoke : for themselves. Both the driver and his assistant had a clear view, and it was most unlikely that if they had had cause to suspect danger they would have moved the timber; they must have passed it safely many times prior to the accident.

If negligence by the board were proved it was submitted Loader was guilty.of contributory negligence and that the accident was affected by ! the maxim, “He who consents to the risk cannot complain of the injury.” Allen knew just as much about the. timber and .the probable consequences -of it being where it was as the board and its employees. It had been, suggested the fishermen had used the steps: a? of right,- but against that it was submitted that that argument must fail because the ’ board had. the freehold, title to the land and water in the vicinity. The New Plymouth Harbour Board Empowering Act, 1925, said the- lands and stretches of water and land under the water described were vested in the board, to whom the lands registrar should issue a certificate of title'. If, as suggested, these people had the right to -use the breakwater steps, then, submitted Mr. Qiiilliam, it followed that they had the right to use the wharves, any, warehouses on the board’s land, and even the board’s offices. Obviously they had no such right. The same remarks applied to the water

between the .wharves and the ■ breakwater and land. What an extraordinary state of affairs there would be at Moturoa if a man insisted on a right to navigate his boat between the Newton King and Moturoa wharves? Obviously he could not have that right. Why should he? Counsel submitted that private persons had no right to go on the board’s property at all; the board w r as the occupier of the land, the. sea - and the land underneath. • USERS CLASSIFIED. There were three classes of persons who used the port —invitees (who went on- the property for some purpose - in which they and the occupiers were jointly interested), licensees (who went there for their' own purposes, but without being invited) and trespassers (who were there unknown to the proprietor, or, if known, whose presence was objected to). It. was for. Loader to justify his presence there. It was plain his real and substantial object was to moor the launch near the abutment. Counsel suggested it was most significant that Allen had admitted that if he did not moor his boat there he would not use the steps. The mooring place provided by the board was east of the Newton King wharf, a considerable distance from the steps. It was true both witnesses had said they w ere aproachjng the steps to discharge fishing gear, but counsel submitted their real object -was to moo! there in defiance of the board’s authority and instructions. ; ’< s .

.It was not.necessary for the board to prove prohibition, but it was necessary for Loader to prove permission and to justify his presence, oil the board’s property.' .s’ Allen had said the other fishermen did not bother about the steps been use: the. board’s., boats were, in the way; That' was strong confirmation of the claim that the board did hot want the fishermen There.' At best' Loader was there ~as a licensee, and' at worst as a trespasser.. The board had done .'its best to! stop people going to the steps and the abutment. It had erected a notice and written'to. Allen. The' only thing that could be pointed to as “permission” was a letter written two and a half ’ years before, but. this had- reference to. an entirely, different matter from that p.qw. under discussion. It.’wokld be most unfair to extract from that letter: the granting of a.license to Use the -abutment; the board, had. beenasked to put some steps on the Newton King wharf and had replied that the breakwater steps were .there- for legitimate purposes if required. ,> . Mr. Quilliam said .that if Loader were to be regarded as a '“bare licensee” the only oblig&ion the board had 'tq him was -to notify him ■ of any “concealed danger” of -which the board’.knew. This piece of timber could not. be said to be a. concealed .danger .for Allen and Loader had just as much knowledge of it as the board. •"■ 1 ' ■ ’ CASE- FOR' THE PLAINTIFF. Mr. Weston maintained that the reference to-concealed danger only confused the issue. This case, had- no reference to the question of -a concealed, danger, but to a positive dct : of' negligence. He submitted it was a case for tlic application of. the maxirii, “The thing speaks for itself.” What had the board done to disprove that it was not a case of prima facie negligence?, It had been admitted the crane dragged or pushed the log '3O fefet aloiig the j line before it-, fell into the'hatßour,’yet no-explanation by way of excuse had been given; -' 1 > • > All' that Fisher and Knapman said was that they had looked, but saw nothing. Did’ that disprove ' the act of negligence? No.-It was open to Loader to suggest Fisher possibly did. not see the log because he. did;'not get*out of' the cabin of the crane. It might be that he would., have seem it.: had he’ been..out of the 1 cabin.' ' • < , 'l.' , •

What possible suggestion could there be that' Loader was giiilty of contributory negligence? He had admitted.seeing the timber there, but that could not possibly' have/anything to do With contributorynegligence.■' The other side, in effect, asked the-court to believe that Loader assented to the log being pushed into the water. ,/ ?’ •

Was Loader a trespasser so as to excuse the. board .fropr tlie negligence of its servants?..Counsel quoted, a Statute exempting, fishing vessels from harbour dues.. The facts were the board did not want Allen’s.boat moored in the abutment, but it liad.lexpressly, by letter, told The fishermen’s association it could' use the steps. Nothing, could be clearer than that' the board’s intention had been tq: prohibit,-the mooring of launches in the- fairway;, but the launches could go to the .breakwater, or the: steps. If Mr. Quilliam’s construction were accepted it would mean .that - small! craft could not go Up and down the. fairways, or use the wh.arves to'load or unload. ;• ■ •

In February, 1928, the fishermen had asked the board, to put steps; on the Newton .King .wharf, hut the hoard replied that the steps on -the breakwater were jsufficient.Tor'their use.! letter had not been cancelled, not even by theJi'qtice':subsequently erected. ■ . POWERS OF BOARDS DEFINED. ; Assuming tlje. notice was wide enough to prohibit the use of the steps by small craft, it , wpuld also regulate traffic .on quays, landing stages? etc. But had the board do. that by'notice,' without ‘a : by-law? A harbour board had been defined by Mr./ Jtis.tice Salmond when he said: “The essentia! and primary function/ of a\harbour ’ Board r?, the administration’ and control of the port under its -jurisdiction.' It governs .that port just as a municipal-council governs a borough ? ' Xt..had been submitted 'the board was in 'the*position of a private land owner,' but that would "place it in the? absurd, position of being able to sei! the harbbur,- or bequeath it in a will. If subject to the' Harbour' Board's Act in one respect, the "board must be subject in I all respects. • The point ■ he- wanted to tnake, said Mri Weston,' was that the board could legislate, only by means'of by-laws. The harbour' belonged to the community large and the board could only legislate by by-law to limit the rights of the ! public. It was - submitted that under the ; circumstances' the public were not invitees because there was' nothing to keep them from going' to the. harbour, except a by-law; Counsel drew the simile that he who shot on his • land - owed a duty of care • not only- to- persons lawfully ■ there, but to trespassers he -knew' might be there. This was not a ease of an occupier’s duties .to a /licensee but of a public body being negligent in its duties to the public. Even if the court held Loader was a licensee - the board was not excused from'lts servants! act of negligence;.''.-.''':'' • ■.

Replying, Mr. Quilliam submitted this was necessarily a case of “dangerous premises.” Somebody having gone on to somebody . else’s property, it became necessary .to inquire as to the. status of that person and. the duty of. the occupier to him. It was, be submitted, erroneous to say the board. could not act except, by by-law. If that, were so it would be possible for a member of The public' to’ take possession of the . board’s offices. -If it required a? by-law to prevent a man using the, steps, it certainly required a bydaw to prevent persons taking possession of the secretary's ollleo. The power to legislate. by ‘by-law did away the power of the board to control it's Own premises, even though it had no by-laws in this respect.' ’ . , A harbour board or borough council

' ■ ' ■■ -J 5.:-It owned the land in the harbour reserve' ■> or borough, and what they might do 1 with it was limited only by the several < Acts concerned. ■ -