COMPENSATION CASE.

Manawatu Herald, Volume XXXVI, Issue 1223, 21 March 1914, Page 3

COMPENSATION CASE.

A FLAXMILL CLAIM. JUDGMEMT RESERVED. Damages for injuries alleged to have been sustained by a flax trammer, through his horse shying at a motor cycle, while allegedly in the course of his employment, formed the basis of a claim heard at the Arbitration Court, Palmerston N„ yesterday. His Honour, Mr Justice Stringer, occupied the Bench, with Messrs McCullough and Scott. The parties were Hugh Kinley, of Foxton, flax trammer, and Abraham King, trading as “A. King and Company,” flaxmiller, Foxton. Mr O’Regan appeared for plaintiff, and Mr Blair for defendant. The grounds of plaintiff’s claim were that ou January 22nd, 1913, in conformity with defendant’s Instructions, he was driving from Foxton to defendant’s flax swamp to secure sufficient flax at the tram head to start the mill on the following Monday, and that while doing so, his horse shied at a motor cycle, plaintiff was unseated, and his left leg became entangled in the wheel of the vehicle, and from the injuries sustained, his leg was subsequently amputated; that plaintiff was totally incapacitated until July i6tb, 1913, during which time he was in the Palmerston Hospital; that plaintiff did not sue tor compensation within six months for the reasons that while in the hospital he was unable to conveniently secure advice, or to take action, and, secondly, that after his removal to the hospital defendant, he alleged, visited him and informed him that as theaccident did not arise out of his employment, he was not liable under the Workers’ Compensation Act, and plaintiff was satisfied defendant’s view was correct. On his discharge, plaintiff took advice, as the result of which he now sought redress under the Act; plaintiff was a piece-worker at the rate of 3s 6d per ton of flax delivered, and his average weekly earnings were not less than los. He asked that the Court would exercise in his favour the jurisdiction conferred by section 25 of the Act, inasmuch as by reason of incapacity, a bona fide belief in the correctness of the view expressed he failed to take proceedings within the time prescribed ; he claimed: (1) a sum representing the accrued weekly payments as from January 22nd, 1913, until the trial of the action ; (2) a sum representing the weekly payments for the balance of the period of liability commuted as'by section 5 of the Act provided. Defendant denied the allegations in part 1 of the statement of claim, and said that plaintiff was not in the employment of defendant, but had entered into a contract with defendant for the cutting and tramming of certain flax, and that plaintiff employed his own workmen for the carrying out of such contract. It was also denied that instructions were given the plaintiff to proceed to the flax swamp as alleged ; defendant admitted that he advised plaintiff that the mill would start on January 3rd, 1913, and that flax would be required, but that such advice was given as a contractor, and not as a worker. Defendant was unaware of the truth or otherwise of the allegations that plaintiff’s horse shied, or that defendant was injured as alleged; he admitted that in conversation between the plaintiff and defendant it was agreed that there was no liability under the Workers’ Compensation Act, 1908, upon the defendant; defendant said he was unaware what profits plaintiff made under the contract. He denied all the allegations in paragraph 5 of the statement of claim. The books showed that, after certain sums had been paid on plaintiff’s behalf for wages, the sum of was paid to plaintiff for flax delivered during the year, ending at the closing down of the defendant’s flaxmill in December, 1912. As a further defence, it was contended that no notice was received of the accident, and that this action was not commenced within six months after the date of the accident; also that even if it were proved that plaintiff was a worker, which defendant denies,. the said accident did not arise out of, or in the course of, his employment. Plaintiff, in evidence, stated that he informed defendant the same day of the accident. The latter subsequently informed the Insurance Company and they replied that they were not liable for payment. It was part of his duty to lay tram rails to the flax swamp. When the accident happened be was receiving 3s 6d per ton. He paid his men direct out of this amount which left him is 6d per ton. F. Whibley, a trammer, said he had never worked under a signed contract. That all his arrangements were verbal and that he was paid by the ton. Evidence was also given by W. Howie, J. Entwlstle, Alex. Drummond and Hugh Jones. Abraham King, defendant, said he arranged to pay plaintiff 8s 6d per ton on the bank. He supplied his own horses and the rails for the tram, while witness supplied the timber. Similar arrangements were made by other millers. The contract was only verbal. He left the management of the swamp to plaintiff. Alexander Ross stated that verbal agreements were quite common amongst flaxmillers and their employees. The ability of flax cutters under contract did not affect the employer. That was the business of the trammer who

had to keep the mill supplied with flax. Counsel then addressed the jury. Mr O’ Regan pointing out that the parties were master and servant and where the employer reserved the right to dismiss a servant when he liked the relationship was that of master and servant and not a contract. This was one reason why contracts were not generally entered into with trammers. Judgment was reserved.