SUPREME COURT,

Dominion, Volume 6, Issue 1777, 16 June 1913, Page 9

SUPREME COURT,

MISHAP AT AN A. & P. SHOW. LAW ( POINTS SETTLED. NO CAUSE OF ACTION SHOWN. Deserved judgment was delivered by tho Chief Justico (Sir Robert Stout) in tho Supremo Court 011 Saturday morning oil certain questions of law which were 6et down for argument before tho trial of tho Blouheim action, Homo v. Dalgety and Co., Ltd. Tho claim ttas for dam-

ages allegsd to be duo for bodily injuries rcccivod through Dalgcty and Co.'e failure to comply with statutory duty. The stnteiiiont of claim averred, inter alia, that, at tho Marlborough A. and P. Show Dalgety and Co., Ltd., employed an engineer to run a sheep-shearing machine driven by u 'l'angye oil-eugine. That the oompany was bound by Section 13 of the Inspection of Machinery Act, 190S, and its amendments, to 'havo every part thereof near to which any person was liable to pass or bo employed, securely fonced; that through a breach of tho statutory requirements nil employee was caught in tho machine, and was in danger of losing his life; and Unit plaintiff (Home) went to his assistanoe, and was injured. The questions of law ordered to be argued before the trial were:— Does tho statement of claim, assuming tho facts therein to bo true, disclose a cause of action ? ' • Would contributory negligence (if any) on tho part of Herbert Stacey Horno be a good answer to the plaintiff's claim? What obligation (if any) rested upon the defendant by law to fence all or any part of tho cam of' timing-shaft of the said machine P At the hearing, Mr. G. H. Fell appeared for tho plaintiff (Horne). while ilr. C. P. 'Skerrett, K.C., appeared for tho defendant company. In giving judgment on Saturday, the Chief Justice stated that the important question was as to whether there was a breach of statutory duty in not fencing tho oil-engine. In tbi9 connection, his Honour was of opinion that the section of tho Inspection of Machinery. Act, 1908, I which Tiad been quoted did not apply to an oil-engine, ana there was therefore no breach of any statutory duty. Regarding another phase of tho argument, his Honour said: "Counsel for the plaintiff further contended that the plaintiff was of necessity a servant oi the defendant, and that he was entitled to recover damages. Many American authorities wore citcd in support of this proposition. If, however, these cases'are examined, it will bo seen that they 6tart with a basis of negligence oil the part of tho defendant." After specially referring to each of the cases that had been quoted, liis Honour concluded:—"lt will thus be seen that, on the authorities, negligence is an essential preliminary to Hie right of tlife plaintiff to recover. In my opinion, therefore, ns thero is no negligence of the defendant company leading to tho injury, tho statement of claim does not disclose any causo of action. There is no need to answer the other questions."