COMPENSATION CLAIM

Dominion, Volume 14, Issue 10, 7 October 1920, Page 8

COMPENSATION CLAIM

AFTER ORIGINAL PLAINTIFF'! DEATH ■ LEGALITY QUESTIONED IN APPEAL COURT B Described by the plaintiff's counsel n : the "first of its kind in Now Zealand, . a case preßontiug unueual features wa 1 hoard in the Court of Appeal yesterda] 1 (The question 'to be decided by th : Court vms -whether, if tho original plaii ' tiff in u claim for compensation und( : the Workers' Compensation Act died I » foro tho hearing, of tho claim, the a< ■ ministrator of the plaintiff's estate woul : bo entitled to sue lor compensation eve ' if he were not a dependant of the plan 1 tiff. The lltlgatio.i was between Georg ! Bodell. of Wellington, plaintiff, and Wi ' Ham Cable and Co., Ltd., defendants. Hi ' proceedings Were commenced jn tfl I Arbitration Court, before the case vra ,i referred to tho Court of Appeal ma ~ cordance with the provisions of sectln 59 of tho Industrial Conciliation an , Arbitration Amendment Act, 1908. ' On (the bench yesterday were riiai 0 Honours the Ohief Justice (Sir Eobei 1 Stout), Mr. Justice Edwards, Mr. dusty ti Cooper, Mr. Justice Chapman, and M , Jufltice Herdman. Mr. P. J. j O Began a. - peared for tho plaintiff, • and Mr. O. J . Troadwell for the defendants. . » The history of tho case is, briefly, . t follows :-On November 21, 1919, Thorn; i Eenry Whitley, of Wellington, met; '• worker, waa killed bv accident wlnlo i 1 the employment of the defendant cor • pany to make certain repairs on ooai • the B.s. Kia- Ora, then moored at tl ; - Bailway Wharf here. Deceased left ■ widow, but no children. On J,o\emb< . 26, Mrs. Whitley commenced an actio • against the owners of the vessel, (feha i Sfcvill, and Albion Limited in which she claimed £1500 damages f< heC of her husband. Before the> ca. could bo tried, however, on Decembc , 20, 1919, the plaintiff died and there b ing no other persons entitled to sue . fe damages independently of. the Worker Compensation Act, the action abated, I operation of law. Subsequently the d ceased plaintiff's father, George Bode! obtained administration of her esUt and commenced an action in- the i\rWa, tlon Court against tho employe" of tl ' deceased, on the ground that the rig to compensation was a right which b • came vested In the wife directly the ace dent occurred, • and that having becoir ; a vested right, plaintiff in the prcsci proceedings was entitled to the amoui ' Si a debt duo tho estate. There wt . no dispute as to the facts of the cas but defendants contended that tho wii . of deceaaed having- elected to claim dan ages independently of tho Workerß .Oon . pensation Act, her right to compensa,tio had been lost, and hence that no ml . pa sod to tho plaintiff in the prescr ?ro cedings as her Personal represent i five. In submitting tho caso to tli Appeal Court, Mr. Justice Stringerjitat : that the question to be considered w whether tho pla ntiff -was entitled to> n ' cover the compensation to which Mr Whitley would have been entitled had sli "ThVprep.ent plaintiff claimed £500, an ' £27 10b. funeral expenses. , It waa expressly maintained yesterda ' that tho partleß concerned admitted tn facts eet forth only for tho purpose c ' stating tho caso, and would not. do boun , by them if action by the plaintiff pri 1 ceeded to trial In the Arbitration Cour . "There is a vested right to be.consu ' crcd," said Mr. O'Regan in opening th , case for the plaintiff, "the right tis accrued to the plaintiff after Mrs. Win , ley's death." Mr. Justice Chapman: Do you n.ea ; that if Mrs. Whitley had become banl rupt before her death, we should hiu . had the Official Assignee nuing hcie? Mr. O'Regan: No. Your Honour. Thei ■ is special legislation dealing with tna point. . Counsel quoted a case in -which a mine was killed in an English colliery, an his only relative died before making an claim. Litigation followed, and the Itoue of Lords supported the claim of otne interested parties, allowing compeusi tion It was considered that the lmbi ity ciißtcd "as from the time of injur as a debt and preferable among dcotE and a present right vested in the oepeni ant although tho dependant made n 1 claim," . , ~ ' •,, Mr Troadwell disputed the right o Bodell to make the claim. Ho referre ' to the inability of the employers at rr< Bent to obtain indemnity, and contender ■ that the -ieht of action abated w:th th death of Mrs. Whitley, as it was a pun ly personal action. The present jilaint; was r.ot admittedly a dependant of Will ley. and therefore he had no r.rht v make any olaim. , . , _ The 'Bench iobervcd ita decision.