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Van Leeuwen v Coconut Products Ltd [1958] PGSC 1 (13 May 1958)

IN THE SUPREME COURT OF THE
TERRITORY OF PAPUA AND NEW GUINEA

LOUISA JACOBA VAN LEEUWEN
Plaintiff

-V-

COCONUT PRODUCTS LIMITED
Defendant

REASONS FOR JUDGMENT

This action came on for hearing before me in Rabaul on 9th, 12th and 13th May, 1958. At the conclusion of the case I reserved judgment in order to consider further several points which arose in argument.

At the commencement of the trial I drew the attention of Counsel to the wording of the particulars of negligence in paragraph 5 of the Statement of Claim and invited Counsel for the Plaintiff to clarify the particulars in order to show clearly whether the Plaintiff relied upon an allegation of failure to provide a safe system of working. The particulars of negligence as drawn were largely based upon the wording of Section 4 of the Employers Liability Ordinance 1912 of the Territory of Papua as adopted in New Guinea. After some discussion Counsel for the Plaintiff applied for leave to amend by adding another paragraph to his particulars as follows:-

"(c) Defendant failed to provide a safe system of working."

I granted this application on condition that should it appear at any time during the trial that the Defendant was taken by surprise further consideration would be given to the matter and any necessary adjournment granted.

The first contested issue involved the allegation of negligence against the Defendant and I have no doubt upon the evidence that the Defendant was negligent.

The Defendant Company's Mill Manager, one Johnson, appeared to be an industrious, and competent employee with a good understanding of the general running of the saw mill. When the deceased was engaged by the Defendant Company he was instructed in his duties by Johnson and thereafter worked without direct supervision but under the general direction of Johnson. The deceased was engaged as a Canadian Sawyer, that is a person who operates a large power-driven saw known in the trade as a "Canadian Saw". This particular saw was mounted in a building of heavy timber with a floor partly of timber and partly of concrete. The saw is mounted partly below the floor level and is equipped with single circular saw blade approximately 6 feet in diameter. The saw is used for the initial breaking down operations on very large logs of timber which are transported during the cutting operation upon a kind of trolley mounted on rails and fitted with grappling devices designed to hold each log steady whilst it is being carried past the saw blade.

It was the duty of the deceased not only to operate this saw but also to keep up the supply of logs which he had to feed through the saw. These logs were drawn up to the saw carriage by means of a winch and wire rope and a supply of logs was kept on a timber staging just outside the door of the saw house or resting on the ground beyond the end of the staging. This staging has been called throughout the evidence a "Ramp" and although the word "Ramp" is an inappropriate expression to cover the whole of the staging I think that for the sake of consistency it would be better for me to continue to use that expression. One part of the ramp consisted of a horizontal floor or decking partly of heavy timber and partly of concrete at approximately the level of the saw carriage and leading to it from the entrance to the saw building. This horizontal portion extended for something like 10 feet and was wide enough to admit logs of about 30 feet in length.

Some distance outside the entrance to the saw building was another horizontal section of the ramp composed of very heavy timber in the form of logs either embedded in the ground or raised slightly above the ground's surface. The logs of which the upper surface of this part of the ramp was composed were set in the direction running to and from the saw so that logs could be dragged or rolled towards the saw over the length of the bearers.

Between these two horizontal sections of the ramp was a sloping section up which the logs had to be rolled on their way to the saw. The slope of this section of the ramp was very gentle and would amount to not more than approximately 5 degrees. It was the practice whenever it could conveniently be done for logs which were being delivered to the mill to be placed on the lower horizontal portion of the ramp and from there the deceased with the assistance of the winch dragged them up to the saw carriage. However, on some occasions it was not practicable for the logs to be placed on the ramp and on these occasions they were placed on the ground a distance of 10 feet or more clear of the lower end of the ramp and at the end farthest away from the mill. The log which caused the death of the deceased one the occasion in question was one of those logs which had been placed on the ground in this position. Having cleared the ramp of whatever logs had been placed upon it the deceased in the ordinary course of his duties proceeded to move this log towards the saw.

The only means provided by the Defendant Company for raising these logs on to the lower end of the ramp consisted of the winch and pieces of heavy timber which were described as skids, and which were placed at a shallow angle from horizontal between the lower end of the ramp and the stock of logs. I have no means of determining what was the precise angle at this point since although I inspected the mill, this part of the ramp had been substantially altered and reconstructed since the accident and an entirely different method of handling logs is now in operation. The sketch plan Exhibit A was put in but this is no more than a rough diagram illustrating how the logs were transported up the ramp. It is not accurately drawn and does not give an accurate impression of angles or dimensions nor of the materials used in the construction of the ramp. Having seen part of the original ramp which has not been altered I am inclined to the view that the skids when placed in position would make an angle of something like 15 to 20 degrees with the horizontal but for the reasons I have pointed out this can only be taken as a rough approx-imation. At all events the main weight of the log was borne by the skids rather than the cable.

The log in question was about 30 feet in length, 8 feet in girth and weighed about 6 tons. In order to move this log up the skids and on to the ramp the winch cable was drawn out from a snatch block placed within the saw shed; extended down the whole length of the ramp and skids; passed over the top of the log and then around underneath it returning to a position on the ramp in which it was customary to fix a Dog-spike which acted as an anchor for the end of the winch cable. Upon a given signal the winch operator, as was the usual practice, applied tension to the cable with the result that the shortening of the cable caused the log to be drawn up the skids at the same time imparting a rolling action to the log after the fashion of roller blinds operated by cords. If the log had reached the first level part of the ramp it would have been normal practice to place chocks under the log to prevent it from rolling and then anchor the rope higher up on the ramp in order to repeat the operation and convey the log up into the saw shed. However, on this occasion before the log reached the top of the skids the log became unbalanced, the winch was stopped, and after a short interval of time the Dog-spike which was holding the winch cable broke, releasing the cable and causing the log to roll down the skids rapidly and crush the deceased, causing his death.

Various considerations affecting the operations involved were explained by Johnson and in particular the safety precautions which needed to be taken. I have no doubt that it was indeed a dangerous operation. At the lower end of the ramp only a single wire cable is placed around the log at the point of balance near the centre and in practice as one would expect logs have a tendency to get out of balance causing one end to swing up and the other down. This tendency is aggravated by any logs having pronounced taper and by any unevenness in the surface of the logs or by any bend or twist which may be present in the logs themselves. It is essential to use two skids in order to get some balance in bearing the weight of the log but if more than two skids are used the log may suddenly swing dangerously when a high spot on the surface of the log coincides with one of the outer skids. The use of a single wire between the two skids appears to be due not to any advantage to be gained from it but solely to the fact that no better equipment was provided by the Defendant. When the log reached a position nearer the saw carriage a special two-wire bridle was used with the anchored ends fixed some distance apart and the opposite ends joined together by a ring and to which the cable rope was attached by means of a hook. Thus at the saw mill end of the operation the log was normally rolled up to the saw carriage by means of two wares the distance between which increased as the log approached the saw carriage, thus giving more positive support and greater control, and helping to minimise the tendency of twist. Having regard to the enormous weight of the logs the use of the two-wire bridle at this end of the operation was no doubt necessary in order to gain sufficient control over the movement of the log to ensure accurate positioning for the grappling equipment in the saw carriage, but it was apparently not considered by the defendant that a longer bridle or a second bridle arrangement at the lower end of the ramp would be warranted in order to give greater control and safety in handling logs which were being transported to the skids. There was some conflict of evidence as to whether this two-wire bridle was in use at the time of the accident, but its use is an obvious means of reducing the likelihood of logs getting out of balance. I think that the use of Dog-spikes as the only means of supporting the log was also unsafe. It was customary to drive one end of the Dog-spike into heavy timber to give it a secure grip and the tension applied to the winch cable tended to drive the spike more deeply into the timber. However, the spike itself is in the shape of an "S" hook for convenient attachment of the winch cable, and the hammering of the broad-bladed end of the hook into heavy timber involved a good deal of damage to the hook. Johnson said that hooks were subjected to heavy use with the result that he hooks frequently broke after much hammering. He could not however, suggest any reason why a proper permanent anchor should not have been provided at any convenient point along the ramp, such as an eyebolt or similar fitting which would not need to be hammered and could be designed to bake all the necessary strain. Further, it seems to me that the use of a Dog-spike in that particular position was really occasioned by the fact that a much greater length of winch cable would be required to go all the way to the log and back to the bridle at the top of the ramp and sometimes the winch cable was too short to reach. Apparently it was not often necessary to raise logs from the ground and no real consideration had been given to the desirability of installing more positive and safer means of transporting the logs from the ground up to the saw mill. The risks arising from the methods employed in using the equipment provided by the Defendant will be further considered on the question of contributory negligence and it is sufficient for me at this stage to say that the system of handling the logs was deficient both in the mechanical means employed and in the way in which the machinery provided was actually used. Viewed as a whole this is all part and parcel of the system of working employed by the Defendant Company and I think that the failure to provide a better system was a direct cause of the death of the deceased, by putting him in a situation of peril when this accident occurred and affording him no means of escape. The other allegation of negligence involves the Dog-spike itself. This was a heavy steel hook forged by Johnson himself out of an old steel motor vehicle axle. The design and construction of the Dog-spike shows that Johnson had a thorough understanding of the device and its use and, was fully competent to make it. His choice of materials though questioned by the Plaintiff apt with the approval of the Plaintiffs expert witness and I have no doubt that the design and construction of the Dog-spike as a Dog-spike of its kind were entirely satisfactory and the material used was suitable and sound. However, after some use the Dog-spike was broken by Johnson with a hammer and a new end was welded on to it by Leslie Percy Smith who was employed by the Defendant as a diesel engineer.

It does not appear that Smith was an expert welder but there is no doubt that he had some knowledge of welding. He was not called as a witness but his evidence as recorded by the Coroner during the inquest upon the deceased was by consent of both parties admitted. Smith's own description of the method employed by hits in executing the weld is clearly inaccurate as is revealed by an inspection of the fracture, and his evidence shows an inadequate understanding of the principles involved. I prefer the evidence of Albert George Price a specialist welder of outstanding experience whose evidence on the question was moderate, fair and most convincing. I think it is clear that the welding of the Dog-spike in question was a task which required more than ordinary skill and experience in welding and should not have been undertaken by Smith. It was in fact badly carried out by him with the result that although the hook appeared to have been soundly repaired it was in an extremely dangerous condition and liable to break suddenly without warning. I find therefore that Smith was negligent in undertaking and executing the repair of the Dog-spike and that his negligence was a cause of the death of the deceased.

The Defendant raises amongst other substantial issues the defence based on the doctrine of common employment and if applicable this would avoid so far as the Defendant is concerned the consequence of Smith's negligence, but not the consequence of any negligence directly attributable to the Defendant Mr. Jones' argument on behalf of the Plaintiff was based on Chapter 25 of Charlesworth's Law of Negligence 2nd Edition. I think that he has correctly analysed the obligation of the employer although I think that he overstated the principle by inferring that the provision of proper appliances and a safe system of working amounts to an absolute personal duty on the part of the employer. The employer does not give a "warranty of quality" under these headings but does in effect warrant that reasonable care and skill will he employed in the selection installation and maintenance of apparatus and in the establishment of a system of working so as to ensure so far as is reasonably practicable the safety of the workmen. The obligation is personal in the sense that it is the responsibility of the employer himself to see that proper care is taken either by himself or by somebody else and if a person appointed to take care falls to do so the employer cannot escape by seeking to establish that his choice of a delegate for the purpose was reasonable and that the delegate's negligence should itself be regarded as coming within the doctrine of common employment. The doctrine of common employment is based upon the assuption that the employer has carried out his duty, and applies only to risks which the employer could not reasonably have avoided. It is clear I think that it can afford no answer to the employer's failure to provide a safe system of work. Under the other heading of negligence relating to the defect in the Dog-spike it was argued that the employee Smith was in common employment with the deceased. He was not specially employed for the purpose of repairing broken equipment but was employed at the mill as a diesel engineer. I have no doubt that his work covered a wide range of repair work of a casual nature. His act of negligence involved in the faulty repair of the hook, it was argued, was negligence which would fall within the rule and would not give rise to liability on the part of the employer. There is however, another aspect of this matter and that is that since the hook was itself a necessary part of the machinery provided by the employer for the use of the deceased there was a positive duty cast upon the employer to see that the hook when broken was properly and competently repaired or replaced with a new one and this was not done. The employer does not escape liability by passing on the responsibility to a negligent employee and therefore I think that the true conclusion is that the employer is responsible for the defective state of the hook. Under Section 4 of the Employers Liability Ordinance 1912 (Papua - adopted in New Guinea) there would be additional reason for holding that the defence of common employment was not applicable if the facts fall within any of the examples specified in that Section. The defect in the hook would I think constitute a defect in the state or condition in part of the machinery employed so as to come within the provisions of Sub-section 1. It is clear that Section 4 does not create any additional cause of action but is intended merely to limit the application of the defence of common employment and therefore to come within Sub-section 1 the defect must be such as would give rise at common law to liability. This for example would exclude in certain cases latent defects for which the employer may not be liable. I think that it is clear in this case that the defective state of the weld in the Dog-spike in question was not a latent defect of this category since it was created by the employer's failure to discharge its duty to take proper care.

I think therefore that the second heading of negligence falls within Section 4 and that the doctrine of common employment has no application in this case.

The next issue that calls for consideration is that of contributory negligence and a great deal of reliance was placed by the Defendant on the evidence of Mr. Johnson by supporting a conclusion that in spite of his warnings and detailed instruction as to safety precautions the deceased caused his own death by disregarding these instructions, and endeavouring to place a chock under the log from behind. The only direct evidence as to what the deceased was actually doing immediately before the accident was that of a native LUKUKE who was the winch driver on duty at the time. LUKUKE had a partially obstructed view of the deceased. It was his duty to watch out for signals. The deceased signalled far the winch to stop and then appeared to be placing a chock under one end of the log which in the course of travelling up a skid had become unbalanced and swang through an angle of about 20 degrees. I think that there was in this witness' evidence a good deal of reconstruction and assumption as to what was going on behind the log. When deceased went round behind the log the witness could only see him from the chest up and it is easier to assume that he was actually placing a chock under the log than to give any other explanation of what he was doing.

According to the witness the Papuan assistant working with the deceased was for some unexplained reason placing a chock under the high end of the log. I think that the only finding I can make is that at this time the log had become crooked land that the deceased went round behind the log for some unknown reason which may have included the placing of a chock under the log, but equally may have been merely to make an inspection of the log, or an adjustment to the equipment in use, or to place bearers on the ground to facilitate adjusting the winch cable after the log was lowered. The basis of the defendant's allegation of contributory negligence was that the deceased knew that heavy logs if suddenly released from any cause whilst negotiating the skids or the other sloping section of the ramp would run downhill very rapidly, entirely out of control, and crush anybody who happened to be in the path. Johnson said that he repeatedly warned the deceased of this danger and actually stopped him on one occasion from going round behind the log to place chocks under it. The incident to which he referred specifically related to a log already on the ramp. Johnson also gave a warning that a log resting on the horizontal part of the ramp might suddenly roll when the cable was released owing to unevenness in the floor of the ramp or some irreg-ularity in the shape or configuration of the log. No occasion can be recalled by Johnson of similar warnings being given in relation to logs negotiating the skids and since this was a somewhat unusual and more difficult operation I think it is possible that no detailed instructions were given as to special precautions to be observed at this stage. I do think however, that Johnson gave at least a general warning of the danger of logs rolling back and crushing people and I think that this was a general danger that was brought to the notice of the deceased. It is quite apparent however, from Johnson's own evidence that the deceased was not an experienced sawyer and that his ability to perform his duties left much to be desired. His appreciation of risks too would depend on his experience. Johnson himself was sufficiently concerned about the lack of experience shown by deceased to mention it to the Defendant Company's Secretary on several occasions and the Secretary left it in Johnson's hands either to terminate the employment of the deceased because of his incapacity or to continue to employ him. I think that Johnson at the time of the accident had not reached any final decision as to what course he would take but I, think that he would undoubtedly have terminated the employment of the deceased if he had been able to find a better qualified man to rep1ace him.

Having regard to the variety of tasks undertaken by the deceased in carrying out his duties I think it is a fair assumption that his inexperience reflected itself in reduced output and clumsiness in handling the logs. There must be considerable skill involved in raising the logs on skids on a single wire. The deceased knew that Johnson was dissatisfied with his work and I think it probably that he was working with some haste.

Johnsons' view was that no good purpose could be served by chocking a log on the skids because the log would over-ride the chocks and that if the log became unbalanced on the wire the only course was to lower the log again to the ground and start the operation afresh. This of course involves loss of time and Johnson's assumption was that the log being slightly out of balance the deceased thought that by chocking one end and lowering the log a little it could be straightened and the operation continued without loss of time. But the suggestion that at the same time the Papuan Assistant was chocking the higher end of the log is irrational and inconsistent with this hypothesis. Johnson said that he instructed the deceased always to chock logs from underneath by going between the timbers of the ramp in front of the log and reaching under the log to place the chock on the opposite side. Having regard to the great diameter of the logs in question and the very small clearance above the surface of the ground and accumulated litter lying between the timbers of the ramp I think that it would be well high impossible to execute such an operation. Johnson admits that it could not often be done and the witness LUKUKE had never seen it done. It would involve the operator going right underneath the log which might well be an extremely dangerous thing for him to do even if there was space for him to reach the required position. Moreover, such a practice could not be applied to the skids where according to Johnson's view (but contrary to Dowie's view) a log should not be chocked at all except perhaps in one instance of quite a different kind having no bearing on the present case. Johnson said that he warned deceased not to use the Dog-spike for large logs, but the witness Dowie said that the winch cable was sometimes too short for the method which Johnson said he told deceased to use, and described several alternative methods actually used, and said that there was no set method.

Even if Johnson told the deceased that Dog-spikes were likely to break at any time because of rough treatment and heavy handling this would not lead the deceased to expect that an apparently sound Dog-spike provided for his use would contain such a serious defect in welding as to be liable to break at any moment. The log was stationary at the moment when the hook broke, and the deceased may have been misled into going behind the log when he thought that the equipment was under reduced strain and therefore safe. The native LUKUKE himself had practised the method of chocking which on Johnson's view was very dangerous and had seen the deceased employing a similar method of chocking on several occasions. He had not however, seen men carrying out the procedure which, according to Johnson, the deceased was instructed to follow. The safer method of inserting chocks at the ends of the logs as described by LUKUKE, is not applicable to logs supported by the skids which could not be reached from the ends of the log.

If there was anything in fact dangerous in what the deceased was doing at the time I think the danger was not attributable to disobedience of any specific instruction clearly applicable to the situation in question but was part of the practice followed by the deceased as an inexperienced and perhaps inefficient operator, and by other operators as well, and was moreover the kind of practice which the Defendant Company ought to have observed and corrected by establishing an effective degree of supervision over methods employed in this part of the mill. I am not satisfied that there was any established procedure at the mill clearly understood by the employees and uniformly acted upon, which would apply to the situation in which this accident occurred.

The acts of contributory negligence alleged in paragraph 9 of the defence somewhat resemble a plea of voluntary acceptance of risk but on the evidence it is clear that the deceased did not appreciate the risk he was running, quite apart from agreeing to accept them. On the trial the case; for the defendant on this question emerged rather as an allegation of carelessness in running unnecessary risks which he ought to have appreciated, but I find that there was no reason for the deceased to suppose that the Dog-spike was defective and no reason to suppose that there was any actual danger of the log suddenly escaping from any cause while it was being held stationary on the skids.

The criticism "You should never do that - you can never really tell when it is safe" is a criticism which, in the light of the unsatisfactory procedures adopted at the mill and the inexperience of the deceased is more appropriately directed to the Defendant than to the deceased. I find therefore that the contributory negligence alleged in paragraph 9 (a) of the defence has not been established and that the particulars set out in paragraph 9 (b) are quite untenable on the evidence given in this case.

I now come to the point of greatest difficulty in this case and that is the question of damage. The Defendant has relied upon the lack of affirmative evidence to establish what actual loss the plaintiff and her children have suffered by reason of death of the deceased. The Plaintiff and her children have for some time since the accident resided in Holland. The action has been pending since March 1956 and no application was made at any time for evidence to be taken on commission. The unsatisfactory state of the evidence as to damage was due largely to conditions in the Territory under which very few substantial actions in tort are litigated and the profession as a whole has limited facilities and little experience of cases involving questions of damage.

The fact that the Plaintiff had gone back to Holland to live was well known to the Defendant and Counsel for the Defendant fully appreciated the point and rightly expected that the Plaintiff would encounter serious difficulty in proving dependency. The point did not emerge however until argument at the conclusion of the case whereupon Counsel for the Plaintiff applied for leave to call additional evidence on this question by having the Plaintiff's evidence taken on commission in Holland. As an alternative he applied for an order directing an enquiry as to damages. I intimated that in my view an enquiry as to damages was not appropriate in a common law action where both parties had been fully heard on the merits of the case but that I would reserve judgment for approximately one week and said that I would consider any further argument which either party desired to submit to me on the question. I have not received any further submissions and must do the best that I can.

With considerable reluctance I feel that I cannot allow the Plaintiff to reopen her case on a point like this at the present stage particularly since the Defendant in contesting the action placed reliance upon this question. If an order for this purpose were granted at this stage there would be several months delay and I do not think I can properly make such an order.

I have carefully considered each of the cases referred to in Halsbury 3rd Edition Vol. 11 p. 226, paragraph 394, as are available in the Territory and I think that my position is much the same as that in which Atkinson J. found himself in Aerial Advertising Co. v. Batchelor's Peas Ltd., 1938 2 All E.R. 788. Bearing in mind that I have found that the Plaintiff has suffered a wrong for which the Defendant ought to make compensation I should not be reluctant to draw whatever inferences may be fairly supported by the evidence. I must be particularly careful not to base inference upon inference. It is, I think, clear that difficulty in assessing damages does not afford sufficient reason for not assessing them at all and thatwhere pecuniary loss is proved the Court must be prepared to estimate damages which cannot be accurately assessed. I think therefore that my proper course is to allow such damages as I may fairly infer that the Plaintiff has lost and if this does not amount to an adequate compensation for the loss which she may have suffered in fact, I cannot on the material before me do any more.

It is common ground that the deceased was the husband of the Plaintiff and the father of the children on whose behalf the action is brought. In Paragraph 8 of the defence I think that there is a sufficient admission that the children were dependants of the deceased and in the absence of any information to the contrary I should infer that they were wholly dependent upon him. The evidence discloses that prior to the accident the deceased and his wife and family were all living together in a house provided by the Defendant at a rent which was charged against the salary of the deceased. Since the provision of the house was part of the contract of employment I think that this establishes that to some extent at least the Plaintiff was also dependent upon the deceased. She was dependent on him at least for accommodation and protection for herself and her family. It is further admitted that the deceased was earning a salary of £1000 per annum but there is no direct evidence either way indicating whether the whole or any part of this money was used in the support of the family. I think that I can fairly say from the evidence that the deceased came to the saw mill from elsewhere with his family in order to take this job. The thing that troubles me most is whether I can take the further step of inferring that the deceased took the job because he needed the money to support himself and his family and that he subsequently used a substantial part of his salary to this end. Having regard to the known circumstances of the deceased and his family and the place where he was living I think that it is extremely improbable that such a man would go there for any other purpose or would work where he did and at the job which he undertook if he or his wife had other substantial means of support. I think therefore that the fairer decision for me to make is that the deceased was in fact supporting his wife and family and employing a substantial part of his salary in doing so. My doubt is not based on any unlikelihood of that being the true fact but rather on whether the evidence before me affords sufficient support for such an inference to be drawn having regard to the fact that the onus is upon the Plaintiff to prove her case.

Another difficulty is that I do not know anything of the Plaintiffs prospect of remarriage which is of course a material consideration. I do not know whether she has already remarried but I do not think that this is itself a matter of direct concern. The matter which I must consider directly is the prospect of remarriage as it existed at the time of the accident and evidence that a marriage has in fact subsequently taken place may be subsequently employed as a more accurate measure of the prospect at the time of the accident than mere speculation on such a difficult subject. At least if my understanding is correct that is the principle upon which subsequent sales may be looked at to assess retrospectively the enhancement of value of land in certain compensation cases. The position in this particular case is that I have no information on the subject at all and that being the case I think that I may properly infer that the Plaintiffs prospect of remarriage at the date of the accident was slight in the situation in which she then found herself.

The deceased was 30 years of age and in good health. In the tropics his prospects of employment would be good and he might reasonably expect good employment for at least 25 years with prospects of branching out into business on his own account at any time he saw fit. I think that the fact that he was not regarded as a highly experienced saw mill hand for this particular type of operation gives no indication of his future prospects in the Territory which I would regard generally as favourable. I would expect that over the period of the future employment of the deceased had he lived he would make to his wife and family for their support a contribution worth at least £12,000 to £15,000. I must allow for contingencies including death or disability by reason of accident, sickness, unemployment moreover would not normally require whole period of the working life of normal length of time. I must allow also for the fact that a lump sum payment by way of compensation is a payment made once and for all and is moreover a payment in advance against future contingencies if and when they arise so that a substantial discount for prepayment should be allowed. Taking all these matters into consideration I think that I should award damages in the total sum of £4,500 to be apportioned as follows:-

It was announced by both parties at the commencement of the trial that the Plaintiff had received on behalf of herself and the three children mentioned in paragraph 7 of the Statement of Claim the sum of £1,725 being an amount equal to the full amount which would be payable to the Plaintiff an behalf of herself and the children under the Workers Compensation Ordinance as it stood at the date of payment. It was further admitted that no proceedings had ever been taken for Workers Compensation and that the plaintiff was not bound by any election to pursue any claim for compensation instead of bringing her action at law.

Beyond the terms of this admission I was not told of the of any agreement under which the payment was made and I take it the intention of the parties that the amount in question should as satisfaction pro tanto of any sum which I may award as damages. Having assessed the total figure at £4,500 this means that judgment should now be entered for a total sum of £2,775. I will direct that of this total sum the sum of £1,000 representing the portion attributable to the infants should be paid into Court within fourteen days and held and invested by the Registrar together with any income accruing thereto in proper Trustee investments until each child reaches the age of 21 years whereupon his share of the money and accumulated income is to be paid over to him, or until further order of this Court or a Judge authorising some other disposition or investment of the money. The widow will need to make application with regard to the funds held for her children should she desire any other order to be made and she will be at liberty to make such applications with regard to that as he may be advised. The remainder of the sum which I have awarded amounting to £1,775 is to be recovered by the widow for her own use. I order that the costs of the action be taxed by the Registrar and when taxed be paid by the Defendant to the Plaintiff.