NON-SUITED.

Press, Volume LXVI, Issue 19957, 18 June 1930, Page 4

NON-SUITED.

COMPENSATION CLAIM. ACTION DELAYED TOO LONG. Because the plaintiff in a compensation case in the Arbitration Court yesterday had brought action at a period beyond the time allowed under the Act he was nonsuited, the Court holding that there was not a reasonable excuse for the delay. The plaintiff, William Broughton, labourer, who claimed compensation from the City Council for an injury which he had sustained while shovelling shingle on relief works, and which, he alleged, had made him permanently incapable of doing heavy work. Mr Justice Frazer was on the Bench, and with him were Messrs W. Cecil Prime (employers' assessor), and Mr A. L. Monteith assessor). Mr M. J. Burns, who acted for Mr C. S. Thomas, appeared for the plaintiff, and Mr JR. J. Loughnan for the City Council. The statement of claim set out that the plaintiff was employed on relief works by the City Council as a general labourer, and suffered an accident during the course of his employment on July 30th, 1928. Since then he had been able to work only on light jobs at intervals, and had been able to do no heavy work. His wages at the time of the injury were 16s a day,' and ho claimed compensation under the Workers' Compensation Act. The defence was'a general denial of the allegations. Mr Burns said mat plaintiff felt something give between his shoulders when he was shovelling shingle on relief works, but, in spite of the pain, he woiked for the rest of the day. He rested two days to see if the pain wore off, and then worked for two more days. The pain, however, became so intense that he had to go off. He was paid compensation at the rate of £2 16s 3d a week, and then, as a result of the recommendation of Dr. Orchard, the City Council doctor, he was put on to light work, sweeping ehannels. He was given work of this kinij at intervals up to November Bth, 1&29, Dr. Orchard leading him to believe that he would recover in time. However, on that day he was dismissed, and, after cortsulting his trade union he had commenced the present action. Mr Burns explained the delay in the commencement of the action, saying that authorities showed that if a man was lulled into a sense of false security in regard to the payment of compensation the lapse of time before taking the proceedings did not necessarily put the plaintiff out of court. Mr Loughnan: Provided it is proved that someone rocked the cradle and lulled him.

Evidence was given by plaintiff, who Raid that he was shovelling into a dray when the pain seized him between the shoulder-blades. It was like something sticking into him. Legal Defence Succeeds. Mr Loughnan contended that the fclaim must fail, as the plaintiff did not bring the claim within the time specified in the Workers' Compensation Act. He would not have relied on this purely legal defence had it not been that the defence on the merits of the case been prejudiced by the delay. In any event he did not rely solely on the technicality. The Council, he added, had also been lulled into a sense of false security, thinking the case had been dropped. The Court retired to consider the technical aspect of the defence, and on resuming, his Honour said that it was obvious that there was a dispute about the medical evidence. The technical defence waß that the action had not been brought within the limit of time—six months from the date of the accident «r the last payment of compensation. The Court bad power to extend tho time if there was neglect on the part of the defendant, a mistake, absence from New Zealand, or other reasonable cause, or if the plaintiff had been lulled into a sense of security. In England the law was slightly different. There it was not necessary to bring an action within six months, but only to make a formal claim. There was no limitation of six years in New Zealand but" the plaintiff, if he had run over six months, (tad to show reasonable cause for any iapse between the end of the six months, and the time he commenced the action. Tho Court would be prepared to assume that up till January 31st of this year, the plaintiff would have been entitled to cla'm protection under that section of the Act, but there was no excuse for the delay of three months and six days from January 31st, _ when the City Council advised that it disclaimed all liability, to May 6th, when the action was taken. The fact that a man'was unfortunately not in good financial circumstances was not sufficient excuse for the delay. Further, if the plaintiff had only written to the City Council after the final letter and said • that he was going on with the case, and asked for a little grace, the Council would probably have met him. but he did not do that, and the Council thought the case had dropped. "I don't how Mr Thomas could possibly excuse ttyree months and six days." his Honour concluded, "but in absolute fairness to the nlaintiff the Court propo-es to enter a judgment for a non-suit, which will enable him. should he be so advised, to another case." Plaintiff was accordingly non-suited without costs.