COURT OF APPEAL

Dominion, Volume 10, Issue 2888, 28 September 1916, Page 9

COURT OF APPEAL

£1000 CLAIM FOR INJURIES The Chief Justice (Sir Robert Stout), Mr. Justico Edwards, Mr. Justioo Cooper, and Mr. Justico Chapman, sat as a Court of Appeal, First Division, yesterday, and had before them the case of Joseph Kaye, labourer, of Westport, against tho Westport Harbour Board. Mr. P. J. O'ltegan appeared for tho appellant', and Mr. C. H. Treadwell for the respondent board. Tho appeal was against tho deoision of Mr. Justice Donmston given at Nelson on March 25 last. When tho case cnino originally before tho Supremo Court, Kayo olaimed £1000 damages on account of injuries received by. him while employed as blaoksmith and tool-sharpener by the board at its quarry works at Cape Foulwind, near Westport. The case was heard by Mr. Ju9tico Dcnniston and a jury of twelve The vordiot returned by the jury was to tho offeot that the board was guilty of nogligehco, while there was no evidence of contributory negligence on tho part of Kaye. Damages amounting to £7f>o wero awarded by tho jury, and Mr. O'ltegan moved for judgment. Mr. Trcadwoll then moved that tho judgment bo entered for £500 only, on the ground that damagos were limited to that amount by section 02 of the Workers' Compensation Act, 190 S. After argument, taken at Wellington [ on March 27 and 28, His Honour uphold Mr. Trcadwell's contention, and awarded tho plaintiff £600 damages. Against this decision appeal was entered,, and the Court was engaged yes- | tarday in hearing legal BTgument. At common law, a worker who has been injured iu the courso. of his employment by reason of tho negligence of a, fellow-worker cannot recover damages from his employer, tho reason being that he is presumed to have had in contemplation when he entered into the contract of s'ervico tho possibility of such injury, and to have waived his right to claim damages. Tho harshness of this rule of tho common law has been mitigated, however, by seotion 62 of the Workers' Compensation Act, 1908, by which tho defence known as common employment has been abolished, but the amount of damages recoverable for injuries by reason of a fel-low-worker's negligence is by that section limited to £500. The harshness of the common law rule is further qualified by another- rule of law—that when a. worker has been injured by breach of a statutory duty, there is no defence of common employment. It was on this rule that Kaye relied in his appeal. SAWMILLING CASE. The Second Division of tho Appeal Court sat for a few minutes yesterday, the Chief Justico (Sir Robert Stout), ' Mr. Justice Edwards, and Mr. Justioo Stringer occupying tho Bench. In the case of the Pukeweka Sawmills, Ltd., v. Gustav Ludwig Winger and Frank Smith, heard in July, the Chief Justice said that written judgments would be available in a few days, but in the meantime it might bo said that Jhe Court unanimously agreed that' tho question submitted for tho opinion of the Court should be answered in tho affirmativo, and costs wore allowed on tho highest settle. Tho original case sot down for hearing was ono which by order of tho Chief Justico had beon removed from the Supreme Court to tho Court of Appeal for argument. The question at issue was the right of plaintiff company to remove certain steel tram rails ajnd sleepers, valued at from £2000 to £2500, from land near Taumaranui Which was originally loased from tho Native owners by the plaintiffs, and tho freehold of w'hioh was subsequently acquired by tbo defendants, subject to the interest of one Native. When the removal of tho line was first suggested by the plaintiff company tho Nativo owners did not object, but tho defendants, who had from lime to time acquired leases which included the wholo of the area through which tho tramway line ran, did enter an objection. Mr. C. P. Skcrrett, K.C., with him Mr. Ei F. Hadfield, appeared for tifo plaintiff company, and Dr. H. D. Bamford (Auckland) for tho defendants. Mr. C. B. Morison, who received judgment on behalf of Dr. Bamford, obtained permission to appeal to tho Privy Council.