ARBITRATION COURT AWARD.

Otago Witness, Issue 2815, 26 February 1908, Page 16

ARBITRATION COURT AWARD.

CQLE r. PHCENIX COMPANY (LTD.). | Judgment in the compensation for accident j&aim, SycLnejr Alexander Cole v the Phoenix Co. (Ltd.), heard in the Aibitration Court ■ on Thursday, February 6 was filed on the 19th/ -The claim was for 10s per week as com- J pensation for injury oa\Ked to complamaiil by i accident arising out of and in course of his , employment, or, in. the alternative, a lump ' sum of £80. The principal clauses in the judgment are as follows. — "The claimant in this case was employed in the respondent company's factory in Dunedin. On November 14. 1906, he was engaged in putting a belt on a pul'ey to start a sugar mill at which he was working. He got caught in the belt, and was carried round witli it, and as a result lie sustained injuries which made it nee«s6ary to amputate his nght leg above the knee. The claimant has not been able to d»o any work since the accident. The respondent has set up three defences in answer to the claim fop compensation: (1) That the claim for compensation was not made within three months from the occurrence of the accident; (2) that j the injury to ihe claimant was not caused ] by an accident arising out of and in the> course oi his employment; and (3) that the Injury to the 'claimant was aittributable tothe serious, and " wilful misconduct of the claimant: With regard to the first defence, theire'Was no evidence of any formal claim, either written or ver>al, having been m«de within three months after the accident, outit was proved that after the a-ocklentth* company had made payments to the claimant every fortnight or month art the ia,te of 10s j -per week up to and including th« 31st day of August, 1907. Claimant's wages at the ' date oi the accident were 1 1 per week, co j that the amount paid to him was equal to j /the amount which he would have been en- j titled to receive as compensation, if com- , pensation was payable to him under the set. I No written acknowledgments were taken for the earlier payments, .out reoeipis were taken for the later payments, and some of these were put in evidence. They were prepared by the- oompany, and describe th« sum paid < as * accident pay,' except in the last re- | ceipt, taken on the &ti September, 1007, in which it is described as ' sick pay.' Counsel 1 for the claimant con'fended that these pay- j nrents^were proof of an agreement by th« reepondent to waive the making of any claim, and the cases of Ferguson v. Welling- | ton and- Manawatu Bjailway Company and Olsen v; Carlson were relied on in support of this contention. Counsel for the company relied on the case of Rend«ll v. Hill's Dry Docks and Engineering Company as an authority for the position that the payments *lone were not evidence of tun agreement by the respondent to waive the making of a claim. Evidence wasj&lso given by Mr Milnes (manager of the oompany) to prove that it is the practioe of his company to pay half wages to any of its workers -who may be injured by an accident during the course of their work, and to do this quite _ independently of any liability to pay compensation under the act. It was claimed that in those circumstance* the payment made couid not be treated as any evidence of an edmission by the company. The payments appear to have been commeßced by the company without any agreement with the -claimant, nnd he was not miormed that the payment ° were being made, according to the oompanv"s intention Bb a matter of grace only, ard not. in discharge of any liability on the part of tLe company. Wa think that the le,_>al effect

of these payments, -whateieT it may have been, cannot be altered by the company's intention in the matter, if, as is the casa here, such intention was no' communicated ;j.i any way to the cla mant. Some time after claimant came out of the Hospital m February, and while the payments weie still being made, Mr Milnes had two mteiviews with claimant's mother. Dtuir.g one of these interviews he asked Mr and Mrs Cole what amoiuit they would take on behalf of their son, as he wished to get it cleared off the company's -books. Mrs Cole's reply was that the matter was m the hands of their solicitors, and they could not say anything on the subject until they had consulted them. After a personal interview, the sohcitois wrote to Mr Milnes in 00-nnection with the claim on, the 3rd of August, and he replied on the oth Au" «t denying liability on the part of tip f rnv-Tiy Xotwithatar-ding this denial of liability three further payments were made to the claimant It was decided in Kendall v Hill's Dry Docks and Engineering Company that payments on account of compensation were not, by themaelv&s, any evidence of an agreement that there was a statutory liability on the part of the employer to pay compensation. lUe dec Won in that case was followed by this court in the cace of Tuck v. the Golden Chain Dredging Co. When Kendall's ca=e was decided the Court of Appeal had decided in Powell v. Mam Colliery Co. that the claim for Compensation referred to in the act meant the initiation of proceedings before the tribunal by which the compensation was to be assessed. That decision was reversed by the House of Lords, which decided that the claim for compensation means not the initiation of any proceedings before a tribunal, but a specific demand for compensation made by the workman upon his employer. In the subsequent case of Lowe v. Myers, it was decided by the Court of Appeal that the claim for compensation may oe made verbally, and also that a payment made by an employer to an injured worker on account of compensation was evidence that such worker had made a claim. . . Pajment alone may not be evidence of an agreement under section 8 admitting nabJity. although it seems to have been the opinion of Collins, L. J.. that the practice of making payments might cryftahse into an actual agreement, but if such payments are evidence of a claim having been made, the failure to make a formal claim becomes unimportant. We think the payments made in the present case are evidence that the company had agreed to waive, and we find as a fact that the company did agree to waive, the making of any formal claim for compensation. The company, theiefore. is not now entitled to rely on the failure to make a claim as an answer to the present application. . . One of the defences is that it was not part of the claimant's duty to interfere with the belt in which he was cought, and that the accident, therefore, did not arise out of and in" the course of his employment. The mill at which claimant wa* working was under the charge of a confectioner named Shoen, who told claimant, when he started work not io touch the belting or machinery. This instruction applied only to the belting on the floor on which the machine was The belt in which claimant was caught wa3 downstairs, on the next floor, and was under the charge of a worker named Brown. There is no evidence that the claimant was ever told not to touch thi9 bet and Wluttaker. the engine-dnvei, ssys

that he bad often seen claimant putting it on the shaft. Brown says i c had never seer, him doing this, but he admits that he had seen him putting another belt on the same shaft and had not made objection to his doing so The conclusion we draw from this evidence is that, although it was Brown's duty to put on the belt in which claimant was caught, it was a common practice for the claimant himself, with Brown's knowledge and approval, to put the belt on the shaft It was necessary to put this belt on the shaft to drive the mill at which the claimant was working, and in the circumstances claimant was justified in thinking that it was his duty to put the belt on the shaft, and, as his duty with regard to this belt had not been clearly defined, the case comes within the principle stated in Kuegg on «mplo>ers' habiliiy, and adopted by this court in Branett v. Stephens — viz , that an accident may arise out of and in the course of the employment., if, the workman's duties ' not baing clearly defined, he may reasonably have thought it a duty to do the "thing in the ' course of which the accident occurred We hold, therefore, .that the accident arose out and in the course of claimant's employment. This finding disposes of the defence of serious and wilful misconduct, because, I if claimant could have reasonably thought I that it was his duty to interfere with the 1 belt, his doing so cannot amount to misconduct of any kind. The claimant is entitled, therefore, to compensation, but we think the case is not ore in which a lump sum should be awarded. We award the claimant as compensation a weekly payment of 10s as from the 31st day of August, 1907, to. be paid to him by the respondent untii such payment is redeemed, ended, diminished or increased in accordance with the provisions of the act. We alow the claimant JEIO 10s costs, with disbursements and witnesses' expenses to be fixed by the clerk of awards.