ARBITRATION COURT.

Taranaki Daily News, 13 April 1917, Page 7

ARBITRATION COURT.

CLAIMS FOR COMPENSATION.

TWO INTT.EKESTKG JUDGMENTS.

At the sitting of the Arbitration Court in New Plymouth last month, Mr Justice Stringer presiding, two claims under the Workers' Compensation Act were heard. Decision in each case was reserved. The judgments were read, at the Courthouse on Wednesday afternoon by Mr J. Terry (Cleric of Awards). ALLEGED HEART STRAIN. The first judgment related to the case in which Benjamin Samuels, of Niho Niho, claimed £498 15s as compensation for total incapacity alleged to have been caused by a heart strain suffered by the plaintiff while in the employ of his father, Solomon Samuels. The action was brought against the father who filed no defence), but the South British Insurance Company, with whom the father was insured against workers' claims, was afterwards joined as third,party and contested the claim. 'Mr A, IT. Johnstone appeared for plaintiff', and Mr J. E. Wilson for the insurance company. The plaintiff's evidence was to the effect that after working for some weeks prior to August 13 repairing fences, he was in the afternoon of that date placing, in a hole dug for the purpose, an exceptionally large and heavy straining post, that this was really a two-man job;, and that when he got the post up to his chest lie felt something "give" in his chest, that he collapsed on the ground, but after a few minutes was able to get up and stagger to his hut, which was close to his father's house and some distance away from where he was working. He said that during the night following he suffered great pain from his heart, and this was confirmed 'by his father, and the Court stated there was no reason to doubt that he did so suffer. The next day 'he rode on horseback to Ohura, a distance of about four miles, and consulted Dr. Dunk. The latter diagnosed the case as one of dilatation of the heart, caused by some sudden strain, and he was of opinion that the symptoms were absolutely in accordance with the account of the trouble given to him by the plaintiff. Later examination by the doctor confirmed him in his diagnosis. In January], 10115, the plaintiff was examined by Dr. Wade, of New Plymouth, who agreed with the opinion of Dr. Dunk on the main question, viz., the dilatation of the .heart by some sudden strain, but disagreed with hjm in some minor details. The Court stated that if the case had rested here, and there had been no r ">on to doubt the plaintiff's story, ti.ey would have had no difficulty in concluding that the incapacity of the plaintiff, which certainly continued for some months, and was probably still present to some extent, was due to dilatation his heart caused by the sudden strain of lifting a heavy weight, and that this was an accident within the meaning of the Act. It was shown, however, by the evidence, that the plaintiff, who was a young man of 24 years of age, had from the time he was 17 years of age been engaged in very heavy manual work, bush-felling, drain-cutting, road-making, etc.—work, as the plaintiff himself expressed it, "as hard as could be got anywhere." This was important in view of the medical evidence given by Drs. Elae-kley and Ifopo, who were called for the defence. They disagreed with the doctors on the other side that there was any dilatation of the plaintiff's heart. They tsatod that there was hypertrophc of long standing (some years), and that this was frequently observed in young men who were engaged in bush-felling and other strenuous occupations, and who were tempted to overtax their powers in nedeavoring to keep pace with older and more experienced men with whom they were working. In their opinion the condition of the plaintiff might well have arisen as the progressive development of existing heart trouble, in the ordinary course of work, and without any sud-, den strain, and they gave very strong reasons for disagreeing with the conclusions drawn by Dr. Dunk on hia first examination of the plaintiff

COURT FIND'S AGAINST PLAINTIFF.

"We are not called upon to decide between these conflicting and fairly evenly balanced medical opinions, or to say which of them, in our opinion, is probably correct," continued the judgment. "The onus of proving that there was an accident within the meaning of the Act, which caused the incapacity complained of ; . is upon the plaintiff, and he has not discharged that onus. He lias not

proved to our satisfaction that he has suffered an accidental injury in the course of his employment which resulted in the incapacity of which he complains. The most that the plaintiff has proved is that his injuries may have been caused as alleged by him, but not that they were actually so caused. His case, therefore, fails. Even if we had been able to find in favor of the plaintiff on this main point, we should still have been j faced with a great difficulty in finding that the relationship between him and his father was that of master and servant. The plaintiff says that he was engaged by his father at a wage of £3 10.5 a week and found. His father confirms this, and says that his son was to be paid the wages wet or dry; and that lie was to work any hours he pleased. It seems incredible that a man with i) small farm of 'OS acres would pay a wage equal to £4 5s a week for the'work of repairing fences, and in addition pay two other sons 10s a week and found, a daughter £1 a month nvhen the cows were being milked, and another daughter 10s a month for helping in the housV: If the story told by the plaintiff and bis father is true, then, at the time of the alleged accident, there was due to the plaintiff the sum of £3l 10s, being-for nine weeks' wages. As a matter of'fact the plaintiff's father paid the plaintiff £23, and in explaining this he said he had arrived at the amount by estimating the value of the work actually done by the plaintiff. This is quite inconsistcut with the theory that the plaintii! was tntitled to wages at the rate of £•■) 10* a week, but rather suggests that the ywk was being done under contract The father's evidence js also unsatisfac- - tor.v in other respects. In giving notice ot the alleged accident to tlie defendant company on September 20 1015 he stated that the plaintiff had been in his employ for only four weeks, and that his wages at the time of the accident were Ifls a day. Again, on June »8 lfli-j in applying to the company for'' a' renewal of the insurance, he made statement* concerning the amount bein* pai* to the plaintiff which were quite lrreeonciliable with the evidence c l iven by hiia in the ea«. It is, lwrnr* unntccssary t, «**, t „ mli n | UK i&&m. •*. a* «»** a* .u».*«b

issue disposes of the action. Judgment for Hie. defendant company, with £lO costs, together with such reasonable expenses incurred in taking evidence at Tttumarunui, witnesses' expenses and disbursements, as may be fixed by the Clerk of Awards/'

'AN EPILEPTIC SUBJECT.

The other case was that of the Public Trustee as administrator of the estate of Alfred James Walter Allcrhy, for and on behalf of the widow, v. James Benjamin Groom, of Riihotu. nurseryman. The daim was for £li7l 10s as compensation for the death of Allerby, who was a laiborer engaged by the defendant. Mr A. 'll. Johnstone appeared for plaintiff, and Mr J. E. Wilson for defendant.

The facts of the case were not in disThe deceased had to grub gorse growing on the roadside adjoining the boundary of the- defendant's land. About 18 inches or two feet from the fence up to which he was working there ran a ditch about two feet wide and 18 iiicha deep, in .which water about four inches deep was flowing. The deceased, on June 9- last, was engaged in the work mentioned, and as he did not return home at his usual time, search was made, and he was found dead in the ditch. The deceased was subject to epileptic fits, and it was not contested that, on the facts aa proved, the .propel, and ineded the only inference which could be drawn was that while at his work the deceased had been seized .with a fit, had fallen into the ditch face downwards and was- drowned in the water of the ditch, which had been penned hack by his 'body lying lengthways in the ditch. In these circumstances it was not disputed that the deceased had met his death by accident in the course of his employment, hut it was contended that the accident did not arise out of the employment, and therefore the compensation was not payable under the Act It was said that the risk of falling into the ditch described was not reasonably incidental to the employment, and not be said to have arisen out of the employment.

JUDGMENT FOR PLAINTIFF.

The Court stated: "We think the case comes within the principle of Wicks v. Do-well (1005). In that case a workman who was subject to epileptic fits was, in the course of his duty, working alongside the open hatchway of a ship, and having been seized with a fit. fell down the hatchway and was injured. It was held that this was an accident, which arose 'out of as well a.? 'in the course of the employment, and that the workman was entitled to compensation. The deceased, in the course of his was obliged to work alongside a ditch into which there was some risk of his falling, and any other person engaged in the work would have incurred a Birailar risk. In a normally healthy person the risk may have "been slight, but even in such a 'case, if on falling the worker had struck a stone, or something of that kind, in the bottom of the ditch, he might have been stunned, and, as a consequence, drowned. The fact that" the deceased being subject to fits which for the time being rendered him unconscious, ran a far greater risk of beina injured or killed by falling into the ditch than persons not so afflicted, cannot affect the principle to bo applied in deciding the ease. As was said in the authority already cited: 'lf a man with a tendency to illness, or to a fit. is told to go to .work in a dangerous position, and there meets with an accident, the accident none the less arises out of his employment, because its remote cause is to be found in his own physical condition.' Judgment, therefore, will bo for the plaintiff for the amount of compensation <w provided by the Act. If the parties cannot agree as to the amount, further application to the Court may be made Ahe plaintiff is also entitled to £7 7s costs, together with witnesses' expenses and disbursements to be fixed by the Clerk of Awards.