ABSENT DEFENDANT

Dominion, Volume 37, Issue 191, 11 May 1944, Page 6

ABSENT DEFENDANT

Waterfront Control Commission WATERSIDER’S DAMAGES The non-representation of the Waterfront Control Commission at the hearing of a claim for damages to which it had been cited as one of the defendants was enni men ted on in -the Supreme Court, n ellington, yesterday. A jury of 12 was being; jriven the duty of deciding the amount of damages that David Alexander should receive for an injury he had received while assisting to work cargo at a Shaw. Savill and Albion Co., Ltd., ship, liability having been admitted. Plaintiff lives at , 37 Edinburgh Terrace and before the accident caused him to cease work was a waterside worker. ~r • x The Chief Justice (Sir Michael Myers) was on the bench. Dr. O. C. Mazengarb appeared for plaintiff and Mr. A. B. Buxton for the shipping company. Pointing out after the jury had been enipanelled that the Waterfront Control Commission and the shipping .company were both defendants but that the cop" mission had not filed a defence, the Chief Justice asked Dr. Mazengarb which was plaintiff’s employer. Dr. Mazengarb replied that his view was that the commission was the employer of all men on the waterfront with certain exceptions, such as harbour board employees. In answer to other questions from the bench, he said the commission had had control of the gear when the accident happened and it had funds obtained by charges against ships. “Surely the proper defendant to file a statement of defence is the. Waterfront Control Commission,” said his Honour. Dr. Mazengarb remarked that for some months it had been difficult for legal practitioners to know where to lay the charge. In several cases both company and commission had been served to. obtain a decision. That practice had arisen to protect a plaintiff, -who, under the current system, did not know who his employer the commission controlled the sear it seemed extraordinary that the commission did not file a defence, and it seemed to have a duty to do so, and even jf it admitted plaintiff’s right to damages, it should file a defence and “appear, said his Honour. He did not suppose any difficulty arose in that particular case. The commission had duties imposed on it by regulations and the funds it had belonged to other people, and it seemed to him there ought to be a defence and appearance. In some cases.serious difliculties prejudicial to plaintiff or the other defendant might arise. Dr. Mazengarb said the difficulty in this case had been prejudicial to his client. During proceedings by the company for the termination of plaintiff’s compensation payments a magistrate had ordered the commission, to be joined, ns a party, but it had taken no action. ".Bater counsel told the jury that plaintiff was aged 04 and had worked more than 20 years on the waterfront. On July 14; 1943. he was hit on the head by a case, as a result of something going wrong with the gear. He was wounded in the head and was unconscious for 20 or 30 minutw; and was treated in hospital and discharged the same day. By November his condition had settled down to sleeplessness, headaches and continued loss of weight. The blow, had caused neurasthenia, which delay in reaching a decision in the litigation had accentuated. • The claim was for and the jury fixed damages at 1378. of £-'>o was general damages and special damages. Judgment was entered against both defendants. . After the jury had given its veicuct, and while the entering of*judgment was being discussed, his’ Honour expressed th opinion that the Waterfront Control Commission. which after all appeared to be a trustee, did not appear to have a Proper conception of its duties in.these mattei» It had a duty as a trustee and it had obligations to the injured person and the, shipowner dr other concern which mi-ht eventually have to foot the ■bill.