A WIDOW'S CLAIM.

Dominion, Volume 4, Issue 1165, 28 June 1911, Page 5

A WIDOW'S CLAIM.

INTERESTING CASE, ■MEANING OF "RECEIVED." Can the. widow of a worker who has boon killed by accident in the course of his employment claim under the Workers' Compensation Act on tho basis of the support, he was liable to provide for her, or is she restricted to claiming upon the basis of what she actually received from liiin? This interesting question was argued before the Arbitration Court yesterday. George Thomas Sherwood, while in the employ of the New Zealand Shipping Company at Wellington, was killed by accident on March -}. 1911. Deceased left a widow and two infant children, aged eight and -seven years, living with their mother, Flora-. Sherwood, at Dunedin. On February 27, 19U(j, the husband and wife had, at Dunedin, entered into an agreement to live apart, the husband agreeing to'pay plaintiff" los. per week towards the maintenance of herself and children, lie paid the instalments for about six months, after which he disappeared, and his wife heard no more of him until she read in a newspaper of his death by accident. She row claimed the sum of .£ll7 as a partial dependent within the meaning of the Workers' Compensation Act, being three times the amount of the yearly sum of payment at the rate of 15s. per week. By arrangement between counsel, so Mr. P. J. O'Regau (for plaintiff) explained, the defendant had been absolved from filing a defence until it had been decided by the Court' whether plaintiff's statement of claim disclosed a case under the Act. Counsel quoted tho following excrpt from Section 1 of the Workers' Compensation Act, 1008: — If the worker does not leave any total dependent's, but leaves any partial dependents, the' compensation shall be a sum equal to three times the value of the benefits received by thesb dependents from tho deceased worker during tho twelvemonths preceding the accident which caused his death, but not exceeding in the aggregate in any case the sum payable under the foregoing provisions. Mrs. Sherwood had admittedly received no support whatever from her husband during tho twelvemonths preceding the accident, and the question, for the Court to decide was the proper construction of the word "received." Should that word be so construed that the widow, notwithstanding her legal right to be supported iu deceased's lifetime by him to the extent of 15s. per week, should be denied tile benefits of the statute? Counsel maintained, although there was no direct authority on the point, for the wording of the English Act was different, that' (he whole weight of authority as far as.it weut, as well as the schemo of iho Act itself, was in favour of his viewthat plaintiff and her children were entitled to three years' weekly payments at tho rate of 15s. per week. The corresponding provision, quoted from Schedule I of the English Act of 1900, read a.s follows:— "If tho workman . . . leaves any dependents in part dependent upon his earnings, such sum, not exceeding in any case the amount payable under the foregoing provisions as may be agreed upon, ■or, in default of agreemeut, as may bo determined by arbitration under this* Act, to be reasonable and proportionate to the injury to the said dependents." Section 13 of the English Act moreover, expressly provided that, in order to entitle to a plaintiff to succeed, the state of dependency must exi<;t at tho time of dcatli. Vet' in spite of these apparently plain provisions, it had been dccidcd iliat, in conformity with the policy of the Act, they must, be liberally construed in favour of dependents who had a legal claim to support against deceased, and all tlio reported cases were instances of the leaning of tho Courts in favour of tho widow. Counsel quoted several cases where husband and wil'o had been separated for long periods—iu one case for twelve, years —during which time the wife had "been paid nothing, and yet she had been held entitled to compensation under tho Act on the death by accident of the husband. These cases did not' admittedly touch tho exact point involved in the case now before the Court, but' they were excellent illustrations of tho liberality of construction to be observed in order to give effect to the plaiu purport of the Act. As to tho construction of the word "received," counsel quoted authorities showing the word may mean "receivable," or "payable," or "vested." In one easo a written guarantee to pay for ("iron received to the valuo of =£200," was held to mean "iron to bo received," and in another case turning on the meaning of the word in a will, "received" was construed as meaning "vested." It. was admitted that, had Sherwood not been killed his wife could have compelled fulfilment of his obligation if she discovered his whereabouts—in other words that her claim to support was legally enforceable. If the Court decided that, because of tho fact of his doath that claim was gone, the effect would be to r.onstruo the Act so as to revive tho barbarous maxim of tho common law that a right of action died with either party. The Act had been expressly designed to abrogate that maxim, and should be construed to carry out its object. Ho held, therefore, that the Court

nust hold that 'plaintiff was entitled to :he amount claimed.

Mr. W. H. D. Bell, for the defendant company, said I here were two points in the case: (1) Whether the claimant was a dependent, and (2) if so, what she was entitled to'by way of compensation. On.

the first point he admitted that the cases quoted by Mr. O'Regan showed that the Courts would presume dependency of a. widow and children unless that pre-

sumption was rebutted, and if it were proved that the wife had not received a penny from her husband in recent years, that would not amount to rebuttal. It would require to be shown that she had given up all idea of having any claim on her husband. So far as the statement of claim in tho present case was concerned, ho did not think he would bo justified in contending that tliero was a rebuttal of the presumption of dependency. The fact of dependency might, however, come up in evidence, 'lhe point he would take was that, even assuming she'was a dependent, she had no claim, because all that tho Court could ■ award was the amount allowed by Subsection (b) of Section -1 of the Act, namely, a sum equal to three times the value of the benehta received by the dependent from the deceased worker during the 12 months immediately preceding his death. His Honour: What is the position of the children? Are they not-total dependents apart altogether from tho mother? Mr Bell - Tliey might be, but this claim is'on tho part of the mother. Air O'Ke'an: I submit it is quite open to' the Court to amend tho claim in favour of the children. Mr Bell contended that lhe children were onlv partial dependents, because thev were' not. as a, fact, depending upon Hie'ir father for the whole of their sustenance. That position heiug granted, it. would follow that they were only entitled to the amount of compensation allowed bv Subsection (b) of Section 1. It was impossible tor the Court to go bejond tho words of that- clause. Suppose tho deceased had earned a week and spoilt 10s. n. week on horse racing. Itid Court would necessarily hold that the benefit received from him by his dependents was onlv 30s. a week. The Court must be gui'ded bv the amount which tho family actuallv did receive, not what they ought to have received. There con d, therefore, be no claim in this case. The word received" should bo taken in its ordinary tense. The widow had received nothing from the deceased during the 12 mouths preceding his death, and therefore nothiiv was pavable. The purpose of the Act was compensation, not a presentation to a ''"IIU Honour remarked that in practice lhe section had been construed as referring to benefits actually received. Decision was reserved.