ARBITRATION COURT.

Taranaki Daily News, Volume LIII, Issue 265, 30 March 1911, Page 7

ARBITRATION COURT.

THE MARAKOPA CASE. The sitting of the Arbitration Court was continued yesterday before His Honor Mr. Justice Sim and Messrs. W. Scott and J. A. McCullough, assessors, to inquire into the claim for compensation brought forward by Sidney St. John Lidiard, master mariner, at present residing in Wellington, against Frederick Iredale, of Awakino. Mr. P. J. O'Regan, of Wellington, appeared for the plaintiff, whilst defendant was represented by Mr. T. S. Weston, with him Mr. C. H. Weston. Mr. T. S. Weston, in opening the case for the defence, said that it would probably shorten the case if the court considered whether the captain's wages with his board exceeded £5 per week. For this purpose he had had statements prepared by Messrs. C. T. Mills and H. Stocker, accountants, which estimated the cost of the board in several different ways. Taking the lowest of these, the total of the captain's wages would be £5 4s 5d per week. Even allowing that the captain was away from the boat 30 days, which he (counsel) was not prepared to admit, the wages, including board, would amount to £5 2s 4'/jjd. These statements had been made up from accounts and.vouchers. i His 'Honoj» said, that in any .case tho court would probably have to reserve judgment. The value of the board and other benefits.supplied by the owner would open up an important question, which would'affect all other cases of u like nature. [ , , The first witness called was: '! Ernest Scott,, engineer on the b.s Pitoitoi when Captain Lidiard joined, who deposed that the first be knew of theviccident was when the captain came to him and asked him to assist in loading. The captain then went to his room, and laid about for the rest of the day. Next day, when the boat left, the captain issued directions from the bridge, his usual practice. On arrival at Waitara, the boiler wanted cleaning, so they thought it was a'good opportunity to give the ca,ptain a rest at the same time. After | the accident, the captain complained about his back and not his sight. He had occasionally seen the captain wear, glasses when reading. Plaintiff took a drink occasionally, but witness had only seen him the worse for liquor.once. * j Walter Chapman, at present working' in the freezing works, Waitara, statedl that he had acted as cook and steward.' etc., on the's.s. Pitoitoi in October, 1909J He. had been at sea for 35 years, asj ,cpo.k and steward, and this was the first tjme. he had to act as an ordinary sea-1 mflin. as well. *He never heard, whilst ,on ;board, that the captain's sight was defective. His evidence corroborated the, previous witness as to the accident. .Witness left the boat that trip on its arrival at Waitara. Witness ordered the boat's provisions, but always left the dockets to be checked by the captain. . To Mr. O-Jttegan: 'mere were five men all told on the s.s. Pitoitoi, including the captain, and all. sat down to food together in the mess room. For the class of boat, the food was first class. > To Mr. Weston: Coal was the principal fuel used in the stove. I Joseph MeGowcn, mate of the s.s. Pitoitoi during the whole of Captain Lidiard's time, deposed that at the time of the accident the hurricane deck would be from 4ft to Cft above the' wharf. At high water it would be about 7ft. JSt the state of the tide at the accident the captain would have mjift very high to remove the cases. TVitness' evidence as to the accident was corroborative. Witness took part in the captain's watch at the wheel during the remainder of the captain's stay on the ship, and the captain did not do any laborious work. I To Mr. O'Regan: It was some little time after the accident that the captain complained about his eyesight. Prior to the accident, the .captain used to help with the loading. The food was very good, but was sometimes badly cooked, as some of the eleven or twelve cooks were hardly qualified. Witness remembered a couple of cooks, who would not assist with the cargo. Both coal and wood were used for the stove; in fact, wood was sometimes used for the main boiler when no coal was on board. To Mr. Weston: All we could expect on a boat of this class was good, wholesome food. . Albert Edward Stewart, who joined the s.s. Pitoitoi as cook and assistant on October 28th, 1011, said it was his duty to order the food. He only got sufficient at a time for one trip. His strict order when he .jojned the ship was to be careful with the food provided for the crew. After he joined, the captain did all he could, working the ship, working cargo, and always took his meals regularly aboard the ship. Lionel Randle, agent during Captain Lidiard's time for Messrs. Burgess, Fraser and Co., the agents for the s.s. Pitoitoi, deposed as to the arrangements for provisioning the boat. He instructed Captain Lidiard to procure the necessary provisions and certify to the accounts. He saw Captain Lidiard the worse for drink on one or two occasions, and had warned him on the last occasion. I Fred. Asher, accountant at Messrs. Burgess, Fraser and Co., gave evidence that all accounts for provisions, certified by someone in charge of the boat, passed through his hands. Before pay-l ing the captain the last cheque witness asked the captain if he was making any j claim. The captain replied: "I don't want to have any trouble with Mr. Ire- 1 dale, but I am going to Wellington to' see the secretary of the Seamen's Union." Later witness saw plaintiff in! Devon street, when plaintiff said his eyesight was troubling him and that he. was going to consult Dr. Wylie. To Mr. O'Regan: Was certain Captain Lidiard said he was going to consult tho secretary of the Seamen's Union. 1 Did not know the captain was a mem-! ber of the Merchants' Service Guild. Lewis Harold Simpson, clerk to the Waitara Harbor Board, deposed that on' the morning Captain Lidiard took] charge of the s.s. Pitoitoi, he referred to witness' glasses, and said he would i have to wear glasses himself, as his sight was failing, and at times things looked milky and wavy. Ho tried on I witness' glasses, but said they were no use to him. Could not swear that Captain Lidiard was referring to long distances. Robert Grimmer, agent for Messrs. Burgess, Fraser and Co. at Waitara,' gave evidence that the plaintiff's sight| became considerably impaired after the! accident. Some time before the accident, plaintiff asked witness to look at his left eye, as it was painful and felt| puffed up. Witness could see nothing beyond a slight puffing, j To Mr. O'Regan: Plaintiff did not complain of his sight; only that his eye] was painful. Joseph Robert Sigley, pilot and light-] keeper at Awakino, stated that he noticed on two occasions that the boat did not come in or go out according to his lights. He mentioned the matter to the captain, who seemed to have some' difficulty in picking them up, and com- 1 plained that he had difficulty in making the channel without more lights. Wit-

ness, however, demurred, as other captains had worked the river with those ' lights. Plaintiff did not complain speciI fically of his eyesight. To Mr, O'Regan: Could not give date of conversation. , Dr. Henry Arthur Claridge, practising in Waitara, deposed that plaintiff came to consult him in December, 1900. Wit- ' ness saw him three times, on all of '' which occasions he was under the influence of drink. Witness told him to 1 make an appointment, and he could examine his eyes. The appointment was s never made. '' Mr. Weston then proceeded to examine, witness as to certain statements made * during plaintiff's conversation with hiin, '• but Mr. O'Regan objected on the grounds that anything communicated in B an interview between a doctor ana patient was privileged. "-■ His Honor upheld the objection. 3 To Mr. OR'egan: On the occasions • when plaintiff called on him witness was. 5 recovering from a broken leg. Arthur Wilding Ogle, chemist, Wai- - tara, part owner of the s.s. Tainui " (120 tons) and Manakau (76 tons), gave " evidence that the cost of provisioning ' the former was from £2B to £3O per > month, and the latter £IG per month. ! The crews were respectively eight and 1 five men. The cook's wages were £lO ' per month extra. The coal was goti 1 from the bunkers, and he did not know 1 how much was used. He had not gone' I into the question of what the board 1 provided for the captain and crew was , 1 worti. 1 To Mr. OR'egan: They were trading under the name of Bayly, Ogle, and C 0,., > who were partners under -tha Wellington, ■ award of the Arbitration Court. lie had j never lad to pay compensation for any sailor meeting with an accident. 1 Gordon Mcintosh Fraser, manager for I Messrs. Burgess, Fraser and Co., formerly agents for the s.s. Pitoitoi, gave evidence regarding the accounts of the steamer. The vessel was not allowed to carry passengers, and the captain had been instructed, to that effect. Prior to the accident his earnings from passenger fares were £3. Recalled latter, he stated that he considered a minimum of 6d per night would be a fair charge for the captain's lodging on board the steamer. I Chas. Thomas Mills and 11. Stocker, accountants, gave formal evidence of the preparation of the statements re cost of ■ captain's board on the boat, as mentioned by Mr. T. S, Weston in opening . the ease. J Dr. Wyflfe gave evidence as to plaintiff consulting, him on January, 1010. I Mr. O'Regan objected to* any disI closure* of what took place between : the doctor and his patient. His Honor upheld the objection. Mr. Weston commented on the fact that Mr. O'Regan had called Drs. Ferguson and McKenzie and examined them, yet refused 1 him a like privilege. Mr. O'Regari then o waived his objection up to a Ceram point. J" Dr. Wylie then gave evidence that plaintiff came to him and complained of failing eyesight extending over some months. Plaintiff said that in October, I 1009, he had met with an accident to his back, and ever since then his sight had been getting worse. Witness found that his eyes, especially tpe right eye, were very defective, both icy- near- and | long vision. . contracted and irregular. He considered I it was a cas'^'of.Rouble optic atrophy, and was more' fflarked in the right ej'e than the-left. ;i 'He''then examined for , other,signs of, the disease in the nervous jy»tem, _ bu't foAnd none. His reflexes ' were quite ndr'ffial', and his blood vessels fairly healthy'for a man of his years. There was nothing abnormal in the condition of his back save a slight tenderness on each side of the spine below the waist, such as would be expected after a severe strain. Witness came to the conclusion the optic atrophy was due to an incomplete variety of the disease known as locomotor ataxia. This often ! preceded the pother symptoms by many years. Qn making,,the diagnosis, he bore ! in'mind' injury to the back. If hemorrhage h'a&.qccurred he would have felt pain p Had, the blindness been caused by thei'accident, it would have been <;oriiparai!ively sudden, and he would iiave had to seek medical advice much sooner, To His Honor: There were no signs of the hemorrhage having taken place. Continuing his evidence, witness stated that he had told plaintiff that the injury to the.back and the blindness had nothing in cojjimon, and though repeatedly asked, ,had refused to give a certificate to/%£, effect, and advised plaintiff to'gb',tp r England for treat- . ment as' he T}ad',fYiend« there. Witness considered it yeiy. improper "or the chemist at Waitara to have told the patient what' t.h'e' prescription was for, ! as alleged.' He (Considered that Dr. McKenzie's evidence .regarding the connection of locomotor ataxia with cy« disease was at variance with current knowFedge, evidence and belief. To sum up the evidence,,, t-he loss of sight waa ' attributable to' optic atrophy, the result of early locomotor ataxia, caused by the venere*al disease already mentioned. To Mr. O'Regan: Locomotor ataxia was almost invariably a symptom ot the acquired venereal disease. After plaintiff consulted Dr. Ferguson witness received a letter, from Dr. Ferguson making, a suggestion as to treatment. Witness received two letters from plain tiff, and he wrote to plaintiff's wife I saying that as .there was a marked difference between-his opinion and that of Dr. Ferguson, plaintiff had better seek other opinion.. ~ [ , This concluded! the evidence. I Mr. T. S. Weston then intimated that : if his learned friend did not wish to ' address the court, he also was willin<> ' to leave the case rest with the conn. I Mr. O'Regan stated that he would like to make a few remarks. ! Mr. Weston therefore addressed the court, prefacing his address with the remark that he felt his duty in this case was a very painful one, but lawyers must disregard sentiment and do their best in the interest of their clients. 1 In this case there were three or four 'points to consider. First: The doctors j must show that the rick in the backproduced hemorrhage, and that this ' hemorrhage produced optical atrophy affecting beth eyes. Secondly: Was no- ] ticc of action and the writ issued with(in the prescribed time. Thirdly: Did the _ captain's wages with board and lodging allowance exceed £5 per week, I Ho submitted that the onus of proof lay with plaintiff. Conjecture was not sufficient, but it must be proved that the accident was the cause of the trouble. H« reviewed the evidence, which showed that the plaintiff was not I disabled by the accident. He further ! pointed out that while the plaintiff had I said his sight was perfect, it was rather a peculiar circumstance that the necessity for spectacles should arise about | one month before the accident, as he admitted. Then there was also the «vij deuce of Sampson, with regard to his trying on the glasses, and also the evij deuce of the pilot at Awakino. Ho also reviewed the medical evidence. Counsel | pointed out that it was also necessary that notice of action should be given as soon as possible after the accident. Notice had not been given in time. He considered that unnecessary delay had 1 taken place in serving notice, which had 1 not been received till April 20, 1010. If the provisions of the Act were flouted, what was the use of them. In

■ regard to the question of pay, he subs mitted that according to the statements • produced (including board and lodging), the remuneration was shown to be £5 ! 4s od, or even allowing the statement j that the captain had 30 days' meals ; at home that would still leave the salary ■i £5 2s 4%d per week. He could not make that allowance, however, as even ; if the captain did not come down to • j the boat the food was there for him.! |j in any case the amount was over £5, ' ' and Captain Lidiard, according to the i Act, was not entitled to recover. I Mr. O'Regan in his address stated :• that he left the question of the late i service of notice to the court. There was no case on record where the claim had been barred owing to want of notice. He pointed out that though the evidence of the doctors were as usual very contradictory, yet they all agreed that physical exertion was a possible cause. With all due deference to opposing counsel, he submitted that they were not required to give proof amounting to mathematical certainty as to the causes. Although the onus of prooi was on them, yet as long as they could give reasonable probability, it was shifted to the other side. They could not have certainty unless they had a post mortem, which in this case was impossible. He held that, excluding the I medical evidence, the circumstances arising justified them in believing the ' blindness was the result of the accident. Plaintiff was within the scope of the .Workers' Compensation Act even if the condition of his health at the time ot the accident was not the best. With regard to the evidence of failing-eyesight ' before the accident, that was merely a sign that plaintiff was getting old, and thftre was no damaging inference to ! W , derived. The question was the most I interesting to decide, viz., whether the, wages exceeded £5 per week or not. Counsel admitted' that his case was a ' difficult one, but not a hopeless one. He t pointed out that the Union S.S. Co. allowed 10s per week as board for seamen and 15s for officers when settling com- ] pensation claims. The manager of the ' Patea Shipping Company had stated in « evidence that it cost his company £G7' a per month to provision each boat's a crew of eleven men. That meant over • £6 per month, and compensation for board was generally allowed at £2. Un- ] less some settled amount was agreed on it would lead to endless confusion ' and research in every case. He sub- « mitted that the Union Co.'s allowance » was a fair one. t His Honor: An allowance of 15s per S week would put your client out of court. ' [ Counsel: The Pitoitoi was practically * I only a glorified canoe, and as the cap- e tain had his meals with the men and , had the same fare, he thought 10s would be a fair charge. That being so, . his wages for the 20% weeks with lodging allowance at 10s per week, would \ amount to £lO5 10s 2d. The captain, ; according to his wife's diary, had been home 30 day's, so there would be some J to deduct His Honor: If you are going to introduce that system, you will create J« the very uncertainty and chaos you' deprecate. Counsel submitted that in a short run like that where the captain pays house rent ashore it was reasonable to ask. His Honor: What are you going to take off ? How are you going to get at it? Counsel: Thirty days at 10s per week l would make £2 3s 4d. This would re- \ dnce the amount to £lO3 Os lOd, or 'just the trifling amount of 16s over what he would have received at £5 per , week during that term. Counsel concluded by remarking that whatever the decision, the case would decide an important point. Mr. Weston protested against this deduction. The court reserved its decision'/