JURY AWARDS £1310 DAMAGES

Hawke's Bay Herald-Tribune, Issue 34, 24 February 1937, Page 13

JURY AWARDS £1310 DAMAGES

Shipping Co. Applies For a Reversal of judgment INJURY TO WINCHMAN Application for a reversal of judgment or alternatively a new trial on the grounds that the verdict was against the weight of evidence and the damages excessive was made by Mr H. B. Lusk for the defendant company when the jury in the Supreme Court at Napier last night awarded R'egelado Rells £1200 general damages and £110 14/ -speclal damages against the New Zealand Shipping Co., Ltd., for injuries he suffered while working a winch on the company 's vessel Rangitane. Fourteen days were allowed in whieh to make either application. Tho plaintiff was represented by Mr C. W. Nash and the defendant company by Mr H, B. Lusk and Mr M. R. Grant. The nearing of the case occupied 5$ houis, and the jury was absent for 2 hours 42 minutes. Giving evidence yesterday, Regelado Rells, a watersider, said that he worked as winchman for the starboard winch on No. 2 hatch on the day before the accident. Between 10 o'clock and 10.30 on September 12, when witness left work, the window was down. The other window was up on the following morning, and the hatchman sent witness to his position. He turned the switch with his left hand on the window ledge, and the window suddenly fell. His position was due to tha fact that witness was compelled to lean over to see the hatchman, and from this position he did his work. When hurt, witness Teported the matter to the foreman, and after treatment by the ship's doetor he was sent ashore. Witness was not one of the regular winchmen, but said that two men named Sheehan and Dunn were working in the same winch-hou'se. Neither of them would have touched. the window. Plaintiff recalled the visit of a photographer to the vessel at a later date, and remembered that when the window was placed in a certain position it fell when the winchman Sheehan tapped it from the outside. Continuous Pain. Even now, the pain in his arm wafi almost continuous, particularly when the weather was cold, witness added. Massage treatment had also caused intense pain, while as a result of the injury to the arm the ishoulder was also very sore. At one stage he was unable to move the whole of his left arm fronl hand to shoulder. As he had never done anything- but manual labour, he. had been unable to work since the accident. Mr H. B. Lusk: You worked on that fcvening until 10 ojclockf Witness: Yes. Do you rexnember a cold southerly wind? — "Ye^" And rain was to be oxpectedf— ''Yes." Are you prepared to say that with that wind blowing you did not have the window closed? — -"No." You didn't open it before vou left! — ' ' Certainly . not. ' ' If you are not called off hurriedly, then you close up yourselves? — "Yes." But you were not called hurriedly away this time? — "No." Did you lean against the window nest morning? — "I can't say." "Are you sure you didn't interfere with the strap that morning? — "1 didn't touch anythingr" Had you started the electricity before the window fell? — "It fell when I turned it on." His Honour: Does the turning-on of the electricity make the house vibrate? Witness: I don't know. Mr Lusk: Was the hand improving under Nurse Patterson's massage? Witness: It was getting wofise. "Windows Were Stiff." Re-examined by Mr Nash, witness said that the window was open when he left. He said in reply to His Honour Jthat he had misunderstood Mr I.usk's question. He then dotailed a discussion regarding the window which he had had the previous morning. He had remarked that the windows were stiff. Andrew Patriek Sheehan gave details of the accident and of the subsequent experiment with the window. Frederick Leo Dunn, the other winchman gave similar evidence. Doctor's Evidence. Dr. J. Allan Berry, medical attendant of the plaintiff, gave evidence that he first saw him on September 13, 1935, when the tip of the third finger of his left hand had been cut off. It healed ici-^ediately, but he then began to complain oi' pain and swelling in the hand. Witness diagnosed Sudeck's atrophy, and plaintiff was admitted to hospital. 9 liero was great pain on attempti'ng the slightest movement cf any oi' tho fingers, although by that time ihe wounded finger had healed perfectly An cperation reduced the swehing, although the hand still gave great pain on any movement, and there was very lutle improt emertt. There had been several instances of this complaint in the past few years. A recent examination showed an improvement in the hand, and it was possible that he might show improvement in the course of the next few years, but witnrss did not think that he could evcr again do ordinary manual labour, and the fingers would probably never reeover from the sttiffness. Completo recovery was impossible. Cross-examined by Mr Grant, witness said that the disease had no regular course of progress. When X-ray photographs taken at various dates were shown, witness said that a later photofraph showed a distinct improvement. Mr Grant: What indications of Sudeck's atrophy do you see in these photographs. Witness:; None, In Cramped Position. 'He has held his hand in a cramped position for 17 months? — "He has ehanged the position lately." If I did the sarne, would not my hand become antrophied? — "Yes." Is it not true that you have diagnosed all the cases of Sudeck's disease in this district? — "Most of them." Is it not a fact that the disease dovelops from the cut to the side away

from the heart? — "I have not hoard that. ' ' Mr Nash: Have you any doubt that the patient has Sudeck's atrophy? Witness: The name doesn't matterj he h9« a crippled hand. Does an examination of the X-ray plates confirm you in your 'opinion? — "Yes, they show Sudeck's atrophy." Mr Lusk: We say that he never had Sudeck's atrophy. Dr. A, G. Clark said that in his opinion the plaintiff was suffering from Suleck 's a,trophy. The fingers could be moved, but the action caused intense pain, and the fingers involuntarily returned to their extended position. At present, Rells' hand was useless, but apart from a slight stiff ness in all joints of the fingers, would probably reeover in about two years. To the jury Mr Lusk said that although sympathy was extended to plaintiff for his injury, it was a different matter when he claimed more than the damages he was entitled to from his employers. It was extremely difficult to call witnesses in defence because crews were always changing, and the boat remained only a few hours at a time. It would be necessary to call the whole ship's company to make any definite proof that no one touched the window. It was the usual custom "for those in the house to shut up the house themselves. It would be proved, however, that the gang itself did the work on this occasion. Tests by Expert. An expert marino surveyor who had tested the window at Wellington would give further evidence that it was impossible for the window to have fallen in the way described. It woul-d be suggOsted, therefore, that the accident was due to an action of the plaintiff, now forgotten, that had let the window fall upon his finger. Dr. F. N. Harvey, well known as a radiologist would give as his opinion that the complaint was rather atrophy of disuse, than Sudeck's atrophy, and in this he would be supported by Dr. W. D. FitzGerald, who had had the case under observation. Michael Fitzgibbon, foreman stevedore, said that on the night preceding the accident, the gang of watersiders worked until 10.5 p.m. The winch houses contained valuable electrical machinery, and it was therefore the practice of the men to see that the windows were closed. Rells had not much experience in the work, and on the night -in question did the work of making all secure. Evidence that he had twice visited the Rangitane to inspect and make a sketch of the winch house window was given for the defence by George David Lidgett, of Wellington, marine surveyor. He tried the window in every way, examined the sashes, and the brass lip on the sash, finding everything in perfect order. The window worked well. On occasions witness balanced the windows, but when jarred they fell into a safe position, and did not descend. Mr Nash: You don't know if the window has been ehanged since the accident? Witness: No. Dr. Harvey contrasted X-ray photographs of Rells' hands with those of other cases of Sudeck's 'atrophy, showing that the loss of density in the bones of the former was not very pronouneed. Rells was suffering from disuse atrophy. Summing up the evidence his Honour said that some servant of the defendant company was alleged to have negligently closed the window. It was necessary to prove this, and that the negligence was the direct cause of the accident. The plaintiff had not been sure of the question of leaving the window open, and had thrice ehanged his mind in cross-examination and reexamination. The jury retired at 5.10 p.m. The jury returned at 7.52 with a verdict in favour of the plaintiff, granting £386 14/- special damages and £1200 general damages. From this the amount of £276 already paid in compensation was deducted. Mr Nash moved for judgment, and Mr Lusk asked for judgment for the defendant, or alternatively a new trial on the grounds that the verdict was against the weigh£ of evidence and that the damages were excessive.