COMPENSATION CASE.

Manawatu Herald, Volume XXX, Issue 438, 29 September 1908, Page 3

COMPENSATION CASE.

Mrs Cameron v. Q. E. Austin.

Decision Reserved.

The above case heard before the Arbitration Court at Palmerston on Saturday and referred to in our last issue, is concluded, and the Court has reserved its decision.

Johanna Cameron, widow of William Henry Cameron who sought compensation from Oliver Austin, flaxmiller, Foxton, for the loss of her husband set out in her statement of claim that Cameron was loading flax in bundles, when he sustained an injury to bis heart, caused by the physical strain of the work, and death ensued almost immediately. Deceased commenced to work for respondent on November 6, 1907, and worked for him until April 20. 1908, making 24 weeks in all, during which time his earnings totalled £l3O ios 4d, or an average of £5 8s gd per week. The defence was (1) Thai deceased died, not by accident, but from natural causes, namely, pericofditis of long standing ; (2) that deceased was not a ' worker within the meaning of the Act, but an independent contractor. Mr P. J. O’Regan appeared for Mrs Cameron and Mr Brown for respondent. Johanna Cameron said deceased was 38 years old and never complained of feeling ill. Samuel Saville, flaxcutter, said deceased was working on a dray at the time of the accident and witness was handing flax up to him. Cameron started to get down, but collapsed, and a doctor had to be sent for. The work was paid for at so much per ton. Dr. Mandl, Foxton, said that the post mortem showed that deceased bad been suffering from heart disease and death would be more likely to occur while doing physical labour. To Mr Brown : Deceased should not have been doing hard work as he had long standing heart disease. He died from natural causes. Alex. Drummond, Foxton, said the man employed for flax tramming could be dismissed or leave at any time. Some were paid by the day and some by the ton. James Collins, flax hand, said the employer always found horse feed, tramways, etc. The contracts had never been reduced to writing. Albert Geo. Clarke, flax labourer, said he had been a partner of the deceased and he received his pay from him. Oliver Austin said that Cameron had been employed at flax carting at 2s 6d a ton, and was to lay a tram. He had employed one man with whom witness had nothing to do. Rachel Rout, divorced wife of the deceased, gave evidence that he had suffered from chest trouble. Mr Brown contended that the onus of showing that deceased died from an accident in the course of his employment rested on the claimant. The medical evidence proved that deceased suffered from heart disease, and the cause of death was heart disease and not an accident. He should not have been at work, but there was nothing to show that the work had anything to do with his death. It would be absurd to saddle employers with the responsibility of compensation for cases of the kind. Then deceased was not a worker, but an independent' contractor, and, as such, he was not within the Workers’ Compensation for Accidents Act. He quoted a number of cases in support. The fact that deceased was free to employ his own labour showed that he was a contractor. Mr O’Regan argued that the case was indistinguishable from Gibbs v. Thomson and Hills, and Whiteford v. the King. In both cases heart failure had resulted in the course of the employment. In both cases the misadventure was

liable to happen at any moment, and in both the medical evidence showed that it had probably been

precipitated by the labour. Dr, Mandl admitted that had he examined the deceased before his death, he would have advised him not to do work of the kind, and that death had probably been accelerated by the work. Respondent must show that at or about the time when death oc-

curred, it would have occurred had he not been at work. In the English case of Wilks v. Dowell claimant fell down a ship’s hold in

consequence of an epiletic fit, and was injured, and it was held that he had suffered .an injury by accident. Counsel cited authorities to show that the relation of master and servant did not cease to exist by reason merely that the worker employed labour himself, or that he received the wages from his r employer and divided them, or that he found tools and even plant, as for instance a cart. In the present case deceased could have left or have been dismissed at a moment’s notice. In Penrose v. Powell the claimant was felling an unspecified area of bush at £z per acre, and Mr Justice Chapman held that, though he called himself a contractor, he was still a piece worker. In the present case the employer found horses, horse feed, trucks and timber, Cameron supplying labour only at is gd per ton. The case was governed by Inspector of Awards, v. Mclntosh, in which the respondent engaged two men to cart quarry spoil at yd per load, he finding the horses and drays, the men supplying labour only. In the result they earned less than the minimum wage prescribed by the award. Xhe Inspector of Awards pro- . ceeded against the employer for breach of award and Mr Justice

Chapman decided that the men were workers and not contractors. If it were decided against him it followed that not only flax trammers, but scutchers, paddockers and cutters were outside the Workers Compensation Act.