BUS DRIVER’S CLAIM

Timaru Herald, Volume CXLIII, Issue 20780, 15 July 1937, Page 6

BUS DRIVER’S CLAIM

ARM INJURED BY BACK-FIRE ALLEGED T.B. CONDITION A claim for compensation arising out of an accident alleged to have taken place on July 20, 1936, was made by William Thomas Belcher in the Arbitration Court in Timaru yesterday. The defendant was the Timaru Borough Council. Hte Honour Mr Justice O'Regan presided and with him were Messrs W. Cecil Prime and A. L. Monteith. Mr K. G. Archer, of Christchurch, appeared for the plaintiff and Mr L. E. Finch for the defendant. Mr Archer said that the claim arose out of an accident which happened while plaintiff was a bus driver in the employ of the defendant. It was alleged that the accident was due to the back-fire of an engine of an omnibus. This accident threw the plaintiff against a lamp bracket, injuring his arm. A few days later the plaintiff was unable to go to work, and advised the omnibus engineer. The plaintiff did not immediately go to a doctor, but visited a chemist, accepted homely remedies and even visited a Chinese doctor. Eventually he went to a doctor and an X-ray disclosed a tubercular elbow. About seven years ago the plaintiff had an operation on the arm. and subsequently had full powers of flexion but not extension. This, however, did not affect him in his work. It was necessary under the Transport Act for drivers to undergo a medical examination, and in May, 1936, the plaintiff went up for examination and passed the test. In fairness to the doctor it had to be said that the plaintiff did not disclose that there was anything wrong with the arm, and the doctor did not pick it, even though the examination was supposed to be a general one.

Early Operation Tire plaintiff, in evidence, said that seven years ago he had had an operation on his left arm, but he had not been inconvenienced. The operation was performed by Drs. Fraser and King. In March of last year he had complained to the bus foreman about a pain in his elbow, and had asked for a lighter bus. He had a preference for the lighter buses, but did not always get them. The Thomycrofts were heavy buses, and the one he was driving on July 20 had no self-starter. He retard the spark and cranked the engine but it would not start. He then advanced the spark slightly, and the engine back-fired. He had his left hand on the lamp, and when the back-fire occurred, his hand slipped off the lamp, and his elbow struck the lamp bracket. At this stage the Court adjourned to allow the plaintiff to demonstrate on a 'bus outside the Court how the accident occurred.

Resuming his evidence, the plaintiff said that after the accident he mentioned to Ms brother, who was a passenger in the bus, what had happened. Apart from . lis he did not report the incident. He went to work next day, although his arm was still painful. By 6 p.m. that day, the time he was due to finish werk, he could do nothing with his arm. It was practically useless at 4 p.|m., but he heard he was to be relieved, so carried on until 6 o'clock. He always took the fares with his left han<J, but on this day he had to take them with his right hand. The next day he advised the Council he could not work, and he had not worked since. Later he saw the omnibus engineer and said he intended applying for compensation and the engineer said that he did not think the plaintiff was entitled to it, because of a previous injury to his arm. The plaintiff mentioned the back-fire, but the engineer said that if they had to pay compensation for all back-fires, he did not know where they would be. Actually hundreds of back-fires occurred. Visit to Chemist Continuing, the plaintiff said that he went to a chemist, who gave him some reducing ointment, and this took the swelling down. About three weeks after the accident, the arm commenced to swell again, so he went to a Chinese herbalist in Christchurch. On September 3 he went to Dr. Fea, in Timaru, and an X-ray examination disclosed a tubercular elbow. Plaintiff Cross-Examined To Mr Finch: The operation to his arm in 1929 was a complete success, the pain which had previously been there having disappeared. The elbow did not trouble him again until March 1936, but there had been swellings in the elbow on occasions, but he could not recall having shown it to the engineer or feliow-employees. He may have done so, but he could not say so for certain. There was favouritism in the garage, and although he preferred the Federal buses, he did not always get them. Is it not a fact that you took your turn with the buses?—Yes. Did you not ask for Federal buses on occasions? —No. Over an number of years you asked for a Federal bus because your arm was bad?—Yes. Mr Prime: What was that? Counsel repeated the answer and plaintiff said that it was not correct. Mr Finch: You said a moment ago that it was. Plaintiff: Not exactly. I asked for a Federal because I liked them. There was favouritism, and I thought I would put up a bluff to get a Federal. Mr Finch: Then the story about your arm being bad was time?—Not always. How did it become bad?—Through back-fires. How did they injure your arm?— They never actually injured the arm, but they caused pain. When was your arm bad before the accident?—About March. What caused it? —I can’t remember. It may have been a back-fire, but there were so many of them, I can’t recall. Do you remember making a statement on October 9 to Mr Steele?—Yes. A Knock Mentioned Mr Finch: In that you said you were thrown sideways, and all the weight went on your left arm. In your statement of claim you said your elbow was knocked. This is the first time we have heard about a knock. Why did you not tell Mr Steele?—l don't know. Mr Finch: In the demonstration you gave outside the Court you told me

that you were pushing the handle down when the back-fire occurred. In your Statement to Mr Steele you said “as soon as I started to puli up the handle the engine back-fired and I was thrown sideways." Plaintiff: That statement is wrong. I never start a bus by pulling the handle up. Mr Finch: How did you manage to use the arm after the accident?—l managed and no more. You told your counsel you could not use it?—l meant after I finished work. That is not what you said before, but you can correct it if you wish? — I could not use it after I finished work. Did you ever tell Dr. Fraser you had a bad arm? —I showed him a swelling in 1935, and he said it was a strained muscle. Lester Belcher, brother of the plaintiff also gave evidence, stating that he had never heard any complaint about the plaintiff's arm being bad before the accident. Plaintiff Complains Thomas Edwin Osborne, garage attendant, said that he had been employed by the Council for 10 years, but he had never noticed any difference between the plaintiff and the other I drivers. On the day after the accident the plaintiff came into the garage holding his left arm and sal-' “if I don’t get a Federal to-day, I -will have to go home again." Asked what was wrong the plaintiff said “I got a backfire yesterday afternoon.” Mary Belcher, wife of the plaintiff, gave evidence similar to that of her husband in regard to the sate of the arm after the accident. She had been married eight years, and the first operation had taken place after her [ marriage. To Mr Finch: Before the accident she had not seen any swelling in the arm although in March it was troublesome.

William Currie, bus driver, said that he knew that the plaintiff had had an operation some years ago, but he had been able to do his work the same as any other driver. To Mr Finch: The plaintiff had never once complained to him about his arm. Bus Driver’s Evidence William Matheson, bus driver, said that he had driven No. 8 Thornycroft bus, and he had experienced a backfire. He suffered a strain, and was off work for 10 days. Ernest E. Brittenden and George Benstead also gave evidence. Change in Procedure At tMs stage Mr Finch asked leave to call his lay witnesses, so that they could get away and not further dislocate the town omnibus service, and this was granted. John McKirn, omnibus engineer, said that he knew that the plaintiff had had an operation on his arm some years ago. At that time the plaintiff told him that the operation had not been completely successful, the whole of the condition not having been removed. Three or four years later the plaintiff asked for Federal buses to drive, if it could be arranged. Witness inferred that it was in order to ease the arm. but the plaintiff did not say so directly. At later intervals witness asked about the arm and the plaintiff complained of pain. It was not true that any man drove one bus more than another, although the plaintiff, after he made his request, received a fair share of the Federals. Witness saw the plaintiff’s arm two or three times after the operation, and on one occasion told him he should receive further advice. If a driver was pushing the handle down with the right arm, and the engine back-fired he would expect injury to the right arm. To Mr Archer: A back-fire could injure a man in many ways. There was notMng unreasonable about a man being thrown over to his left and injured on that side. He knew no more than anyone else that the plaintiff was suffering from a tubercular elbow until the X-ray revealed it. Some men preferred the lighter buses and some the heavier ones. In 1934 the plaintiff asked for a week off, giving his arm as a definite reason. Mr Archer: Was t not because the plaintiff had lost his child under distressing circumstances? —I would not dispute that, but I distinctly recall the discussion, and the plaintiff said he wanted to have his arm examined. I told him I thought he was very wise. Had you ever had any complaints about the man’s ability to handle the buses?—No. If I had, I would have demanded a medical examination. Complaint Made Eric Robert McConachy, motor mechanic employed by the Borough Council, said that until 12 months ago he allocated the buses to the drivers. He recalled the plaintiff having complained about his arm. The plaintiff usually drove No. 1 bus, which was a Federal, and he expressed a liking towards it. Godfrey Trembath, bus driver, stated that the plaintiff told him two weeks before he went off work that he had a sore arm. For 12 months on and off he had complained about the arm. John Michael Fetrie. motor mechanic at the omnibus garage, said that a week or so before tin plaintiff left off work, he asked for a Federal bus as his arm was crook. He mentioned his arm on several occasions before this To Mr Archer: It was likely that the plaintiff had used his arm as an excuse to get a Federal bus. ’ Recalled, the plaintiff said that he had asked for a week off after the death of his child. His arm had had nothing to do with the request, which h: had made to Mr McKim at the cemetery. To Mr Finch: Mr McKim was wrong when he said the request was made at the garage. Elbow Permanently Stiff Dr. W. R. Fea said that when he first saw the plaintiff on September 3 the elbow was swollen and tender. With limited movement. An X-ray showed a tubercular condition, for which he gave treatment. If would be impossible to say how long a cure might take —it might take two years or less but there would be a permanently stiff elbow. Considerable progress had been made but there was little change radiologically in the X-ray taken on March 18. Witness was of opinion that the infection started up six or seven years ago and it was possible that it was present when the plaintiff underwent an operation come years ago. Progress of the disease was generally slow until either the arm became useless or a slow, natural cure took place. Nature’s way of curing was by stiffening the joint.

From the fact that the arm was semistiff for some time witness thought that it was infected during that period. Any sudden trauma or Injury might increase the destructive effect of the disease. He did not think the plaintiff’s condition was due to the natural progress of the disease. The evidence was corroborated by Dr. F. F. A. Ulrich, who expressed the opinion that before the accident the disease in the plaintiff’s elbow was quiescent. The accident would be sufficient to account for his present condition. The plaintiff might regain the use of his arm in two or three years, but it would be permanently stiff. In view of the infection, the stiffer the joint was kept the better. Doctors Disagree For the defence, Dr. C. S. Fraser said that Belcher had come to him to be examined for a bus driver’s certificate of fitness. Belcher had never drawn his attention to a swelling on his arm. The examination in such cases was not rigid and it was possible that a man might have some trouble which was not apparent. Belcher had not complained to him of any trouble when applying for a renewal of his certificate of fitness.

Dr. J, C. McKenzie described the plaintiff's elbow as an ordinary tuberculous joint, in which the disease had progressed slowly. It had been active before the accident and if allowed to progress would have inevitably broken down. In witness’s opinion the only way of determining the effect of an accident to the arm was to X-ray the joint before and after the accident. He repeatedly saw examples of r. man continuing his work unaware that he had advanced tuberculosis. On September 3 no doctor could say whether the plaintiff’s condition was spontaneous or not. The tact that the plaintiff did not receive treatment for six weeks after the accident would allow the disease to progress, unless he rested the arm. If there had been no accident, the plaintiff might have been compelled to go off work at any time, but exactly when ! t was impossible to say. Witness did not think the accident had any material effect on the disease. The Court reserved its decision.