WIDOW’S APPEAL.

Star (Christchurch), Volume LXIV, Issue 939, 8 December 1933, Page 7

WIDOW’S APPEAL.

Sequel to Fatality at Waitaki. £I4OO DAMAGES SECURED. Per Press Association. WELLINGTON, December 8. The Court of Appeal delivered judgment to-day in a case in which the point was raised whether persons working under co-operative contract with the Government were servants of the Government or independent contractors. The appeal arose out of a decision of Mr Justice Kennedy in a case in which Minnie Solomon, widow, Timaru, sought to recover £2OOO damages from the Crown following the death of her husband, who was killed by accident at the Waitaki hydro-electric works on May 20, 1932. The Court gave judgment in favour of Appellant, allowing the appeal with costs in the Court of Appeal and in the Supreme Court. i* The Chief Justice, in a lengthy judgment, said that the task of the Court was to construe the agreement which had been executed between the parties and fie himself was satisfied that the agreement was one for service and that the men were servants and not independent contractors. Mr Justice Ostler and Mr Justice Smith, in independent judgments also held appellant to be the servant, but Mr Justice Macgregor differed from the other members of the Court and upheld the judgment of Mr Justice Kennedy, which had been appealed from.

The facts, as outlined to the Court, were that appellant's husband, Edwin John Solomon, was killed by accident at the Waitaki hydro-electric works on May 20, 1932. The widow subsequently commenced proceedings, claiming £2OOO damages, alleging that the accident was due to negligence on the part of Alfred Henry Rawson, a fellowworker, who was one of the party to which the deceased belonged. Solomon was working with a number of others at the bottom of a deep excavation, his work being to fill trucks with spoil, and these trucks were hauled up a steep face for about 75 yards, on top of which Rawson and another man jvould receive the trucks as they arrived, one pushing them further on to the tip-head while the other secured an empty truck to the cable and sent it down the incline. On the occasion in question the truck was not properly secured to the cable, with the result that it rolled down the incline and. coming into contact with Solomon, killed him instantaneously.

The claim for damages was heard before Mr Justice Kennedy and a jury of twelve at Timaru on Kebrr'rv 2 and 3 last, when the jury found that the accident was due to Rawson s negligence, and awarded £llOO damages, £9OO for the widow and £SOO for het child. No evidence was called few t>'e rV. fence, but Mr W. D. Campbell, who appeared for the Crown, raised two nonsuit points: (1) That there was no evidence of negligence, and (2) the party of co-operative workers to which the deceased and Rawson belonged were independent contractors, and there being no contract of service, there was no cause of action and the Crown was not liable.

Mr Justice Kennedy took time to consider his decision, and in the course of a lengthy reserved judgment delivered on March 30 he found that there was evidence on which the jury could find negligence, but on the second point he agreed with counsel for the defence that the party to which the deceased belonged were independent contractors, and hence that the verdict could not stand. From this decision the widow appealed.