ACCIDENT ON CONTRACT

Taranaki Daily News, 12 June 1931, Page 2

ACCIDENT ON CONTRACT

FOREMAN AWARDED DAMAGES COLLAPSE OF WALL AT DAM. ACTION AGAINST CONTRACTORS Reserved judgment for £6l 3s 10d in favour of Thomas George Howarth, was given by Mr. Justice Reed at the Supreme Court at New Plymouth „ esterday in connection with the claim fox - damages for an injury received when a seepage wall at the New Plymouth hydro-electric dam collapsed oti him ou December 28, 1929. The original claim against the contractors, J. T. Julian and Sons Ltd., was for £lOOO general and £142 Os 6d special damages. The general damages were claimed on. the assunq Lion that Howarth would, suffer permanent injuries, but counsel intimated at the hearing on Wednesday that medical evidence would not be advanced to support that. In his judgment His Honour made an allowance for £l3O 16s Sd already paid. The wall was an exceptional structure, said His Honour. It was not intended to stand alone, but was to have the lateral support of earth filling on each side and to be finally buried under clay. The material used was of sufficient quality for the work and the design was suitable. The only matter that required attention from those in authority was the necessity to ensure that adequate precautions were taken for the support of the wall until the filling made it secure. No such arrangements were made. “The evidence satisfies me,” proceeded the judge, “that the plaintiff was not placed in charge of the work of stripping and that, in fact, to no-one was delegated authority, to supervise what was undoubtedly a delicate operation. On the contrary, the carpenters received independent instructions to knock down the profiles and boxing. Those working Hie pumps were under no direct supervision, and the filling in with clay on the top side was independent of the other operations. NEGLIGENCE SIIQWN. “The fact that these several bodies of men were jointly engaged on a work which, unless co-ordinated, might result in the wall falling, is negligence on the part of the defendant company in the conduct of its operations. And to the negligence must be attributed the accident. Those engaged in removing the profiles were doing so in the manner usually adopted when they were dealing with a firm structure, quite wrongly when dealing with a construction such as this wall; water was being pumped out of the seaward side while earth filling was going on on the other side, and water was then accumulating. “Each set of men was acting independently and without regard, to the acts of others. The foreman saw that all support had been removed from the mountain side and that the men were filling in the ditch. It was his duty, knowing, as he ought to have, known, the unstable nature of the structure, to have given some warning when, in those conditions, he saw the carpenters using a maul on the seaward side, knocking down the profiles.” Proceeding, His Honour said it had been contended, however, that assuming negligence, the plaintiff was guilty of contributory negligence; that he had the last opportunity, of avoiding the negligence of the company and his fellow employees. He did not think the evidence justified, a finding of contributory negligence. The onus was on the defendant to establish that. The contentions on the point had been largely based on the assumption that the plaintiff was in charge of the work, but His Honour was not satisfied that he was. Each branch of the work was being carried out independently. In the general work on the contract it would seem the head carpenter occupied a position entirely independent of the plaintiff and with as much authority. The head carpenter haff removed the supports on the mountain side apd partly removed, them on the other side, and when he left the work he left his subordinate carpenter engag in the same work. He, an experienced, man, did not regard his acting in this way as dangerous. The plaintiff had no more experience, if as much, and it therefore could not be said, that as a reasonable man he ought to have foreseen the danger when he got into the trench to help get some of the timbers out. His Honour thought no contributory negligence had been proved and that the.plaintiff was entitled to judgment, NOT PERMANENT INJURY. Special damages were unchallenged and these figures carried plaintiff’s wages down to the date when ho was fit to go to work. Regarding general damages, the medical evidence was that ■he had suffered no permanent injury, and in these circumstances His Honour thought a sum of £5O was adequate. This, with the special damages, made a total of £192 0s 6d. Against this he had received already from the Company £l3O 16s Sd; the judge said he was unable to follow the reasoning that part of this—an ex gratia paymentshould not be treated as an ordinary payment; it was paid in respect to this accident and the company was entitled to. credit for it. This left a balance of £6l 3s lOd, for which judgment would be entered for the plaintiff, with costs according to scale, witnesses’ expenses and disbursements. His Honour added that he understood the hospital expenses, which the judgment included, had not yet been paid. There would be an order, therefore, that the amount of the judgment and costs should be paid into court and. that the sum of £lB 9s due to the hospital should be retained until the production of a receipt or order from the hospital regarding the money. At the hearing Mr. C. H. Croker represented Howarth and Mr. C. JI. Weston the contractors.