LAW REPORTS.

Dominion, Volume 2, Issue 615, 18 September 1909, Page 15

LAW REPORTS.

»\ SUPREME, COURT, YYQRKEhs , COMPENSATION FOR , " INJURIES. ' v ITS COMPUTATION. • 'JUDGMENT IN, A TEST CASE. \ Longthy argument took place on. August B wofore thefr Honours Justices Coepor, Chapman,'and Sim, as to thjo correct method of estimating workers' compensation for physical \njuty. It TV ne a test ceao m which. Walter Donton Rough, joiner, was plaintiff, and Prouso Umber,, Ltd, defendants. Mr. P. J. O'Rcgan appeared •'for plaintiff) 'and Mr. P. M- Findwy for defendants. Tho , two matters in dispute wore connected •with the consttuetion v o£ Schedule It, attached i to the' Workers' Compensation for Accidents ' Act, 1908r Tho {act* were no_t contested. Plaintiff, while engaged at his employment on May 17 last, had his left hand caught in a Eiirfacuijt machine, Tho little finger was eevored, and tho third flpger mutilated. ! His Honour Mr. Justice Coop.es: delivered the judgment of tho Court yesterday. This was a proceeding, said his Honour, to deolare tho pnilciplo upon which the plaintiff was entitled to compensation under .Tho Workers' Compensation, Act, 1908, in respect of tho in--1 jury sustained by him, in tho course of his ' employment by tho defendants. His wages at I tho timo of the accident wore,.£3 Is. 4d, a ' week During six weeks of total incapacity, 4 he received bait wages UX Ws, Sd. per week), i - , totalling .£9 4s, and defendants wero prepared i " to "pay such further compensation as plaintitt i was ' entitled to * receivo under tho Act It r', was* admitted that-the ratio oj percentage to full coinponsation'for total incapacity which 1 plain*? was ontitUd to reccivo was, under I the second schedule, twelve per cent Tio I quostious which tho Court was, asked to det cide wero, (1) Is the plaintiff entitled to compensation at the rato prescribed by the seco . n(l schedule of tho Act, without deduction for discount ,under Section 5, ■■?,' and, (2) Is ho ehtitlcd to such compensation without any deduction of the amount paid in weekly pay-mentsl-dMing-Ms incapacity?- "These- might, ! However, bo more proporly 6tatod as follows - (1)' Whether, plmatiff w»i entitled to receive the siim of J&t Ba. (twelve per cent. of. onev' half of iplaintiS*e average wcekl? earnings at s the-hmq of the- aecidont,-calculated, overan / aggregate, period of ant years ;rom the- date ot tho aceulwt); (8) Whether, if so, » d«dttchbn should ho made for discount undor■ Sscc- ; tion s'of the Act, and (3) Should tho XO 4s. 1 already lecoiwl by the plaintiff bo also de« f ducted? Tho basis of compensation under too - Workers' Compensation Act, 1908, which had i ' repealed the Consolidated Act. IW. was, in 1 respect of total incapacity, a sum of one-half i of the worker's overage weekly earnings, at tho time of the aMtdont, and in respect oj partial incapacity, one-half of 'the. difference between tho amount ol his average weekly earnings before the. accident and the average, ) weekly amount' the worker was earning - or. was able, to etta Jn.some suitable employ. I ment or business after tho accident. Weekly payments were. limited *9 a P«wd of six years J and the eggregato amount was in no I cask to exceed £'M. But Section 8 of the Act,created a further liability on tha em, ployer It enacted that compensatibn foruho. -, injuries mentioned in the first column of tho i second schedule should be assessed in the, i manner indicated in 'the second column ot that scheduled. . Plaintiff had totally lost the little fingor ofh" left hand, and appeared to haw lost,the,use of the ring linger a]so.| Tho Courts was relieved, however, from the * task of decfding.whethor he- was. entitled under ' the admitted to twelve per cent /', for tho httlft ityger, and eight i>er cent., for tho {.ring finger, as hl»"claim had been deliberately'confined, to, twelve per cent, for the little ftngeY.. /In construing: tha , schedule; tho, Conrt decided that it would bo unwise to attompt to. - solve a puxde which was not in I issu'e in this <ase. -Mr. Q-'Rcgan's firet conten- • tidh had been that there must bo a lump sum, I and that tho, full 100 per cent. of. thg. compensation cnJuwM wa> thi, aggregate. 'smbunfr l o£rSixytyesrs i ,,we - akJy payments of one-half wages, if such aggregate sum, 1 did not exceed ' £500: "As tho aggregate v sum of, sis yews' half stages was, w the. present caso, .«78tSs, he claimed that the"oplainhff *(is entitled to a present payment of £ST ss, 12, per cont. of the gross amount, and that. Consequently, Section 5 of the Act did not affect the. 'question. , -' In tho opinion of the Court, tho construction of Section 8, and oi the second sohedulo which Mr. O'Reg&n submitted was not the raop'er/jmeanin!; of the deetioh and (he schedule. Wlen a worker was totally incapacitated for life, by reason of an i injury, ho could not claim more than sis years* half (Wages. He'co"uld get tho full amount for. tetat incapacity under Section 5, and 100 per cent, also tho full ' amount, for a tptaj inca- ' pacify .under the contracC, Thc~oia wiped out th 6 Other. \ NoVcould he if, notwithstanding tho severity of the injuries constituted total incapacity under-, the schedule, ho wero ilhlei after a time, and during the period of hx years,,to. do some, wor.k, claim, to. receive in iaddition to the 100, per cent, a further , e\im i for partial incapacity, .Tho, 1 liability, and the worker's right to compensaI tioil, *ero limited, in tho opinion of tho Conrt, to one assessment of the full amount fallowed under tho Act for total incapacity Tho Court's answer to the questions wass (1) Tho plaintiff is not entitled as of right to pay.-, montiof the sum of .257 Bs, but to a recurring ■weekly pajmoat o£ twcUe per cont. of. .one. half tho average weekly earn ho was 'earning at tho time of tho accident; (2) If ths parties agree upon payment of a. lump sum", it must bei calculated upon the< basis prescribed m Subsection' 3 of Section 5; (3) Tho defendants ate i-ntitliid toicMdit for the sum cf £1 2s. Id., or, in other , words, the total weekly payments , which shall ha aggregated-for the purpose ot ' eorajiutine n, lump sum, with tho discount prescribed undor Subsection. 3 Qf' Section 5, ehhlLnot include tho hrst MX weeks. order for costs waa made, as'the Court ' considered that the- decision of tho question j wai for the mutual benefit of both parties, and arose for the Uzii timif upon somewhat , , confusing,provisions 1 of the statute. IIJOJr LIGHTED CAKuTO DAEK KOAD. ' -' '' 'THE CASE CONTINUE!}. i ' Hearing; of a claim against the City Council wni continued ytstorday before his Honour Mr. Justice Chapman and a common jury of fonr. Thomas Ignatius lYourclle, draughtsman and , architect, claimed £61 13s. 4d as special dam- , ages, and .£350 as general' damages, ,for ini juries received through, falling rfnta >a hola ' in the, Parade, near Island pay, , lit, Gray and Air. O'Rcgan appeared for; pl/iinttff, and Mr, Skerrett,, KC, with him Mr. O'Shea (Oity,,JSphc.itor), for tho 'City Council. , ' ; •, ~^ It was alleged by plamtiff.'in hie statement I of k Claim, that the. council, 'after constructing- a barrel dram 'm Avon Street, had neglected to fill In properly an excavation m the Parade, alongside' a natural, Water courso. The loosened soil had been eroded by tho wdather, making tho street dangerous and uueaf« On the night of Saturday, Janilary 23, plaintiff stated that he returned homo from tho vCity about 9 o'clock. It was a stormy oveuing, and when ho left the car, thero wore no lights to guide him to his house. He made his way to tho side o{ tha road, and followed tho fence, alone- Then'ho'fell into the hole, and sustained a fracturo of his 16ft arm above tho elbow, Being laid up, ho lost his salary for two months, amounting to .Mi 13s. 4d, and was put to the expense of <C3Q for surgical ana , medical attendance. An oxponditure of .£l6 was I incurred by plaintiff in Obtaining massago for. f hl3.iarm. He Has now unable to climb ladders, and suffered inconvenience by the permanent shortening pi the limb. ' Tho injuries woro alleged to hare; happon&d in consequence (1) of tho , dangerous condition of thq sheet called the Paiade, (i) of tha council's negligenco m omitting to Jill in the- excavation, t>r placo any protection round it, and i (3) of their failing to light and keep lighted ah eloctrio lamp close to the hole. The defendartt corporation admitted that a small erosion of tho bank of tho creek in the Pnrfido took place near tho drain, but denied ' that there was any hoio in the highway. It was denied, also, that the erosion was Caused by negligence, or that it rendered the Parade , dangerous and unsafe. Tho corporation said i that tho erosion was uuq to tho natural flow 1 of surface water from tho Paradd in uoi weather. It denied that any injuries, happoned to plaintiff as tho result ot negligenco, aud it further denied that there was any duty on the defendant corporation to light and keep lighted any electric lamp. As a 6ccond defence, tha corporation said that it ft as under no liability to repair tho erosion, and wns in no rospect liable for any Injury or dp.mage caused by.it As & third defence,'tho cor poration said that, if plointilt sustained in juries on tho Parade, tho injuries were caused by the negligence or wont of care o£ the plaintiff, , . Hearing of the concluding evidence for de- ' fondant, and the addresses of counsel, will be i taken today.