COMPENSATION ACT.

Dominion, Volume 6, Issue 157, 15 October 1912, Page 3

COMPENSATION ACT.

"A STATE OF CONFUSION AND ABSURDITY." THE JUDGE'S COMMENT. "CAKELESS AND INCOMPETENT DRAFTING." Some severe comment on the drafting of an amending Act was made by Mr. Justice Sim in a judgment of the Court of Arbitration, filed in Wellington yesterday, in a case in which Thomas Griffiths, waiter, of Wellington, sought to recover compensation from Samuel Gilmer, hotelkeeper, of Wellington.

At the .hearing Mr. P. J. O'Regan appeared for Griffiths, and Mr. A. A. Stuart Menteath for Gilmer.

Original Claim and Defence,

From the statement of claim it appeared that Griffiths was employed as a barman at the lioyal Oak Hotel, at a wage of £2 7s.'. per week. On February 29, 1912, his right .wrist had . been injured through tho bursting of a soda-water bottle, and he had,"consequently, been totally incapacitated for a month. During that time lie received payments under the Workers' Compensation Act, 190 S. Then, being honestly. of the opinion that he had completely recovered, he had signed a discharge; releasing the defendant (Samuel Gilmer) from further liability. Plain-, tiff afterwards alleged that by reason of the accident; the little finger and ringfinger of'.his right hand have since become contracted; or atrophied, and he had been advised that they will grow worse. i He therefore claimed compensation proparly due. for such injuries.

The defence' :was a denial of liability, the defendant (Gilmer) declaring that, if it were proved that Griffiths were suffering from the injuries alleged, these could not be- attributed to the accident of February 29. Defendant further stated that: any weakness or debility from which Griffiths was at present suffering was not' siich as to incapacitate him from pursuing. his'usual avocation, or, reduce his earning power. In opening the case for the plaintiff Mr. O'Regan .raised a rather novel legal point. He pointed out that the accident had happened on February 29, and the. new Act came into force on March 1. He would argue that the discharge given by Griffiths could not stand, because the procedure provided by Section 10 of the new Act had'not been complied with. The average insurance agentor layman might con-, elude that the Act was not retrospective, but he -would argue that, in matters of procedure, the Act • really was retrospective,- and that in this case the necessary procedure had not been complied with.

His Honour's Judgment and Comment. In' giving judgment, his Honour pointed out that the evidence of two doctors was. to the effect that the ends of the .severed '. ulnar nervo might be found and, united, and, in any caw, the operation. would' do Griffiths no injury. Until. Griffiths had. submitted to that operation, , and,-/the. result' was known, it was imposMblc-.to say that' tho case ■was; one of permanent disablement. The case would,be:adjourned until the next sitting of., the. Court at • Wellington, s6 that there .would be an opportunity to have the operation performed. ■"!£ the result is not satisfactory," the. judgment continued, "and the ca c e proves to b9 one. of , permanent disablement,' the Court'will then have to consider the question of .the .construction'of Section 10 of tho. Act'of 1911, and determine, whether. the disablement referred to therein. means only disablement existing and recognised .at tho date when the agreement ma'de,' or extends to disablement which appears 1 subsequently, and is not known or suspected at the : date when 'tho agreement is made. If the first-mentioned 'construction of the section be adopted, then, whatever iuny be the result of the operation, the defendant will be entitled to judgment. If tho other construction be adopted, and the case proves' to be one of - permanent disablement, then, notwithstanding the agreement, the plaintiff (Griffiths) will be entitled to further compensation." His Honour then referred to the desirability of-s"ttling claims by agreement, where possible, and touched upon Mr. Msnteath's. contention that- to do this was difficult, if not practically impossible under the amending Act of 1911. Then proceeding, his Honour said:— "The only, objection to a settlement of claims by agreement is that 1 a worker is induced sometimes to accept ..a small sum in final settlement of, his claim, without having had proper legal and medical advice, and without realising that he has not fully recovered from the effects of the injury." Any objection on this ground might have' been met by adding a proviso to Sub-sgction 3 of Section 18 of the Act to ' the .. effect that the agreement should, . not be binding unless the employer satisfied tho Court in which it .was challenged, that the worker or. his dependants had mado the agreement- with a full understanding of what was being, done and after having had competent, and independent advice as to any legal and medical questions arising in connection with the claim. Tnstead, however, of. dealing'with the matter in this way the Act of 1911 makes it necessary for tho agreement to bo approved of by a .magistrate or inspector of factories' in cases .where the injured worker has died or been permanently disablod. This provision would not have been so objectionable if the duty cast on the magistrate or inspector of factories had been merely that of satisfying himself that the worker or his dependants understood clearly the effect of' the agreement, and hnd made it-, after having obtained independent advice from competent advisers. But that is. not what lie has to do. He has to satisfy, himself that "tho terms of the agreement are on the whole as favourable to-the worker or to his representatives or dependants as are the provisions of this Act.". The unfortunate magistrate or inspector has to find out what legal and medical questions have arisen in con-. nection with the.claim. He has to solve all these questions properly, and having ..solved them and ascertained what ought .to be paid under the Act, he has. to .consider whether the agreement gives terms on. the whole as favourable as those given by the Act. It is not, a matter for surprise that, as' stated, by Mr; Jlenteath, magistrates should have declined to attempt to discharge; the .impossible duty sought to be imposed on them by this section, and shoyld have left it to inspectors of factories to grrffcple as best they could with the task. "It .is difficult to understand why the >words,'on the whole 'as favourable to the worker or to his representatives or dependants as are the provisions of this Act' were put into the section. The explanation appears to. bo that the draftsman responsible'.for the section took them from 'Section 58 of the principal Act. That section deals with a scheme of benefits in lieu of'the compensation provided by the Act, nnd used in.that connection the language is appropriate. The draftsman has (nken .this language and nppiici it to another Miljicct matter, without apparently taKing' the trouble to consider the meaning of the words and what their effect would be. It is - unfortunate that the legislation on this subject, which ought to be: particularly clear and intelligible, should havo been reduced to such a state of confusion and absurdity by careless and incompetent, drafting. ' It is desivablo that this should bo remedied as soon as possible by the Legislature."

Young, appeared for the appellants, while Mr. A. W. Blair, with Jlrf G. H. Fell, appeared for the respondent. Tlio appeal was from a decision of the Chief Justice (Sir Robert Stout) in dismissing a motion for nonsuit in a claim for damages for alleged breach of agreement in respcct of the New Zealand rights of the Billows patent aerating machine. Particulars of the case were published in Saturday's issue. At tho conclusion of argument yesterday their Honours reserved decision.