ALLEGED LIBEL.

Dominion, Volume 2, Issue 420, 1 February 1909, Page 9

ALLEGED LIBEL.

', CONDITIONS AT OTIRA TUNNEL. 'ARE SPECIAL JURIES NECESSARY? Sitting in Chambers on Saturday, Mr. Justice Chapman Jiea'r'd argument in connection with summonses brought by plaintiffs for special juries to try the cases of Murdoch M'Lo'an, Neil John M'Loan, and Sons, and John M'Lcan and Co., Limited, versus, the "New Zealand Times" Company, Limited, and the same versus tho 'Wellington Publishing Company. Tho claim in each instance is for £2000' damages for alleged libel arising out of tho publication of a report of a discussion by tho Minere' Federation of tho conditions of labour at tho Otira tunnel, iho contiactors for which aro tho plaintiffs. As the a'ctions aro practically identical, it was decided that argument with regard to" both summonses should be heard at tho same time. Mr. Monson appeared on hehalf of plaintiffs; tho Attorney-General, Dγ, Findlay, K.C., for tho "Now Zealand Times" Company, Limited; and Mr. Harold F. Johnston for the Wellington Publishing Company. MUCH EXPERT EVIDENCE TO BE \'\ \: CALLED; ' For tho plaintiffs, Mr. Morison said that the alleged,-libel consisted partly of statements of fact and partly of comment. Before the defendant companies could reach their defepco of fair ronunont they had got to establish -the disputed- facts on which the cominontrnas based. For all practical purposes .tbp issue was one of justification. Two important, matters in which unquestionably export evidence in its strictest sense was necessary arose. These wero tho allegations— (1) That tho workers suffered from sores througk contact T\ith poisonous water, and (2) that fits nere induced oning to fumes of a poisonous nature existing in the tunnel With icgard to the allegation that there vere-,poiS(Jnous fumes in the tunnel, it had to be determined whether such fumes did whether they could induce fits, and whether, in fact, they did induce fits in the partycular person alleged to havo boon affected '-. As a matter of fact, the evidenco / undor dhat head related only to one person, an epileptic, who did not take a single fit in the tunnel. It would be urged by plaintiffs that tho fits could not hive been the result of tho atmospheric conditions at the works, but were the result of the man's constitutional weakness ,A similar class of testimonv would have to bo called in connection with the allegation that the water which dripped upon tho men was poisonous. It would consist, of e>id<?noe relating to tho analysis of tho water, and as to what tho men actually did suffor from This evidence would, he submitted, negative the contention that the spres and swellings were produced through impure water ,Then, again, it would be necessary to adduccjiesfcimony regarding the nature of tho appliances in use at the works. Tho question,. »as ono for consideration by persons who were expert m that particular class of i work According to tho resolution passed by tho minors, the workm were compelled to work under unfit conditions., The question thus arobc - Wore the conditions of work such ys to secure immunity from anything which might reasonably be prevented With rospect to the appliances it would be shown that they were up-to-date, and had been specially imported for tho purpose Their use was -not only to excavate, buj; also to draw out of , the tunnel impure air and supply a /current of fresh air. Then', with respect to tho question of damages, tho matter should bo decided by a jury consisting of men of commercid instincts If th© "statements ir question were beliovod, it would be \jery difficult for his clients to get workers to complete the undertaking" Wherever thero'was evidence of a'special nature coming'within the meaning of expert knowledge in the somewhat wide seDse tint tho word was iked; a speml jury should, he submitted, be granted If the ciEe>raafij«no i Sn l,, 'which*'!t 7 w'&s held that there should not b<3 a specia'l fury, then it would, to Conceive what class of case weuld fall within tho principle, adduced'in tho decisions from' which ho'had quoted - ' '1- *, --11 ' »(<- f«3>' , Bi-1 • 1'

;;:: ■"| r/;; D^:^<yaS;?nCr<^y,^id.^ha^: "■■ J u . r J^™l , « su , a l!y'PDly'granteU in';a qase'which : turned-;'on"-as'difficult V c[tfestioiii '%10: siy, /;'rtechamcsV;physi(»; ; '-.and-ipvsom«"caMs;;Ti:here :|therq : wasa,difficult:,medi9al point.":':A special .v.jurj;W3s not-allowea withithe , same readiness ;. where P^t;:*as ; -i>ani;-v Action;" Neither;'for clibol;>(H-:;,fp'r-:;there:«=wasf.Las;KinV-iaieSvprefent- i caseV '.a-marked ; line; of : deniarcationVbetwecn ; the v #es'.!.tqv which'.^plaintiffs '.belonged/ :the ;classv to which : thosevwho:'uttered the"'state- : menfej bel6nged;>lThe : statemehtß ; : were contamed:;in;'rieTOpaper'-;.reports 'Ipubthe;'ordinary ;coufse;;(if -b'usiness,-without-the , slightest: intention" ;.'i or, injuring .plaintiffs. ibt The rVrepo^:i^a.:npt;pretena.;to; ; cVntain'cbmnienJs- : .. by,-, ;Th6~.eiass ; '6 ; f ■;'. statenlehtvihade-atj'the 'Me'etuigV.was. ■ just : the' ; ; usual in /connection ; :TOih;;s'n^^h'enn^sU/ jh'e v 'fa6tß, .'.which .'the'-defeiidarits rintended- to .'maintain ; that '!the i houses ''supplied' for; ther use ; of ; the worker's '.were n.o't";;waterpfo6fj 'a'iid .'that :the ;cpmlition : s.:.ofi'.wprk;; "tunneU'were: ;-..funfes and 1 poi^bnons;water : present'.-' Experts' ; [ h'aye.'to '.;fe', called; :but?,their' "evidence, would "■. h'ot' ; b& of.' suchya-natiire" as Xo ;!;render; i;^ ; si«ciat"jpr^:n^eia^y.' ;.whiclir; experts jwbuld be. ''■;■ accejrted^by^tho; : jury ;V ; , The',; majn ;'■ portion' : . of', :..ithe';.oysß'.*aV^ha't^tlie'<^n^iliotisi i : thq ;:meß?^eYo^lipused:. ; were; : ' - ' a'.:, class i,'' : dfr ''.case,' ...whiclii .:■' ; waei; just.rv as;^capable';: of;•■•decision^' jury;as; : by : : a Especial .jury.; ; (He icon-: ;-able:tp:"deci"de'■'mi3sCpritnq^,qu9pti6riß"'.''which v ;would arisOivThbse que.etipns'Tvo'uld. include, • ditionshttU tHoimen ki'iwofk?: : ;.W«reithe.'c6n-: ;, ditiohs'. such«.as;: to.; keep.^men'■ ?;•; and ~ wpuld/.tliestatements;in', pu'estion ..lead'men V'Bo)/ ; ,tp : ;offer. i their,/servjcesr ' : i c.n; iH' .- ! \-•■';'■;.. "■'■' : Mr;,, Johnston, • .who:..: ; followed, '•.' ..jury^rolated.ibiths,cpnditioils:iof,; labour;;at' the works.' ;No export evidence' was, in- his; -/opinion necessary.'; The'.summons for a special ; jury had.been;brought.soj.that bthehmatters ' extraneous. and ,remote.:inight';be ■ considered.;:According',tb.;the:authoritiesi; ; special jury j .'' r wa's , .requir^;.p'nrj-when;-ther6:'^as : 'som'9'difli-| 'evi-;i dehcerfcallcd 'which-.wouldV be- , 'beyond'';the ,it would, be;bott-er to.go-to a-mixed tribunal. ;;than£.to.\;one--.consisting-entirely :;of .'employers '■'] .. or. members : of;.one class,'. ■He 'contended .that' :;:the; summons should bVdismissed;:;'. .;;J ; r

yi-HisjHpnbur,. said' he .would'.talieitime'-to--oOttadßphis/judgmeiit:::^v;i : i^:,}.p{ : o: : .