EXPECTATION OF LIFE

Evening Star, Issue 23368, 11 September 1939, Page 8

EXPECTATION OF LIFE

INTERESTING ISSUE REVIVED SUPREME COURT DECISION JUDGMENT FOR PLAINTIFF The reserved judgment of His Honour Mr Justice Blair was read in the Supreme Court this morning in a case in which Alexander Forrest, as administrator of the estate of his son, Ronald Stewart Forrest, proceeded against the Kaitangata Coal Company Ltd. on a claim for £1,500 damages. The action arose from an accident at the defendant company’s mine on September 8, 1938, in which Ronald Stewart Forrest was crushed between railway trucks and killed instantaneously. The point in question was whether, if the plaintiff were entitled to recover damages as the representative of the deceased, who was killed in an accident while he was a worker curployed by the defendant company, such damages might include damages ior bodily harm suffered him or for curtailment of his expectation of life. Mr F. B. Adams, with whom Mr D. L. Woods was associated, appeared /or the plaintiff, and the defendant company was represented by Mr J. C. Mowat.

The question for argument arose upon section 55 of the Workers Compensation Act, 1922, and section 17 of the Statutes Amendment Act, 1937. the plaintiff arguing that the latter had no application to cases falling within the former. While the answer to, this question would not entirely dispose of the action, it could have the effect of reducing the claim from £1,500 to £5Ol general and £lB 5s special damages. His Honour, in the course of his judgment, said that the claim made by the representative of the deceased worker is for damages at common law for an injury arising from his employment. and it specially states that it was founded upon section 55 of the Workers Compensation Act. • 1922. Alternatively, the cause of action was founded on the Deaths by Accident Compensation Act. 1908, and the Coal Mines Act. 1928, but such alternative bases of claim were limited to the claim for funeral expenses and the general damages. They therefore did .not touch the specific question of law the subject matter of the case stated. Subject to the consideration of the question of implied repeal to be later discussed, the questions he had to answer therefore depended upon section 55. It appeared to him that when that section was read according to its ordinary meaning it clearly contemplated the survival for the benefit of the deceased workman’s estate of all rights which he or his estate had at common law. Conceding that the decision in Ross v. Ford might have seemed to lawyers as an extension of the law relating to damages, it was clear that that case did not pretend to lay down any new law, but was a mere statement of what always was the common law. That being so, section 55 must be read as applying to that common law. When, therefore, the legislature by section 55 enacted that the right to recower damages survived for the benefit of a worker’s estate, that section must be read in the light of the common law as it then was. and they knew now that the common law then was as later stated in Ross v. Ford.

Turning to the argument submitted for the defendant, that the Statutes Amendment Act. 1937, must be construed ns being also a repeal of section 55, he stated that if the effect of the 1936 Law Reform Act had been to extend the operation of section 55 of the Workers Compensation. Act, 1922, whether or not it specifically purported to do so, then one might' have had little difficulty in coming to the conclusion that the repeal of the 1936 Statute had destroyed any enlargement of section 55 made by the 1936 Act. But section 55 was not in any wise enlarged in its operation by the 1936 Act. What actually had happened was that since the decision in Ross v. Ford they had realised that the common law as it was in 1922 was different from what many of them imagined it to be. But they would impute such a belief to the legislature. Accordingly, therefore, he must approach this matter upon the basis that the legislature was well aware of the effect of section 55 of the Workers Compensation Act, and how far it was going when it enacted and subsequently repealed the 1936 Law Reform Act. For the defendant it was properly admitted that the right to claim damages for loss of expectation of life subsisted by virtue of section 55 prior to, the passing of the Law Reform Act. 1936. and that no question arose in this case as to the deceased being a “ worker ” within section 55. But it was stronglysubmitted that section 55 was impliedly repealed by virtue of section 17 of the Statutes Amendment Act, 1937. The case for the defendant was admirably argued by Mr Mowat, and he said, firstly, that any cause of action which might survive to the administrator survived by virtue of the 1936 Act as effectually as it survived to the administrator under section 55 of the Compensation Act, and therefore subject to the repeal and limitations imposed by section 17 of the 1937 Amendment. In other words, Mr Mowat’s argument _ was that as hoth statutes—i.e., section 65 of the 1922 Act and ipart I. of the 1939 Act—dealt with the topic of survival of actions, then a repeal of one of those •tatutes carried with it an implied repeal of the other, because both of them concerned the same topic. It was true that both statutes dealt with the same topic, but due weight must be given to the fact that the 1936 Act dealt generally with the topic of survival of rights of action, whereas the 1922 Act dealt with the survival of sights of actions, not generally, bnt for _ the benefit of “ workers ” as against their employers. Section 55 is part of a statute intended to confer rights to workers in relation of injuries sustained by them while at work, and these rights were limited to claims as against employers or their indemnifiers, The whole framework of the Workers Compensation Act is to proyide workmen with insurance against industrial accidents, whether pure accidents or arising from negligence on the employer’s part. There was this distinction between section 55 as compared with part I. of the 1936 Act. in that the latter statute was of general annlication, whereas the former was limited to a particular, and. it might be said, privileged class. Moreover, the 1936 statute did not give to workers any rights additional to what they already possessed by section 55.

Although the 1936 statute was so framed as to he of genera! application it seem to him that lie was bound to look at the question in this way. The legislature, when it came to consider the wisdom of passing or repealing the 1936 amendment, must be presumed to have known that workers, by virtue of section 56. already enjoyed certain benefits’ relating to the survival as

against their employers of causes of action. When the question arose as to passing the 1936 Act the legislature could well be assumed to have taken the question it had to decide to be whether the benefits conferred upon workers by section 55 were to be extended to' the public generally. And having come to the conclusion that such was desirable it did so by enacting the general statute of 1936. Then in the following year the wisdom of the generality of the 1936 statute having come into question the legislature in effect said to itself “ we have gone too far.” and it determined to put the law back into the position it was prior to the passing of the 1936 Act. The wording of the 1937 amendment lent support to this view because that statue commenced by saying:— ll Where by virtue of part I. of the Law 7 Reforms Act. 1936, a cause of action survives for the benefit of a deceased person.” The interpretation he was asked to put upon those words in effect was to treat the words “ by virtue of part I. of the Law Reform Act, 1936,” as non-exist-ent.

It was pointed nut that if section 55 had been repealed, then but for the repeal of the 1936 Act the survival provided for by the 1936 Act would have remained by virtue of the general words of that Statute. That was true, but the position of the plaintiff was that on the passing of the 1936 Act he possessed the right of survival of his cause of action in two ways, one being because he was a worker and the defendant his employer, and the other being that ho was within the ambit of a general statute relating to survival of causes of action. Full effect could, therefore, he given to the repeal of a statute providing for general survival without affecting in anvwise the right as to survival conferred for the benefit of a particular class of persons of whom the plaintiff was one. He was not prepared to hold that section 55 of the 1922 Act was repealed by section 17 of the Statutes Amendment Act. 1937. and accordingly answered in the affirmative the question of law submitted.

His Honour said that as he might not be in Dunedin again for a lengthy period, it was desirable that he indicate bis tentative view as to costs. The plaintiff had succeeded in this argument and should be credited with his costs relating to it, whatever the result of the trial. The rules fixed costs on arguments of questions of law upon a scale basis. The argument related to a claim for £1.500, which would be the highest scale, but as it was an unliquidated claim it was not possible for him to fix the scale until the fate of the claim upon this head of damage was known. It appeared to him, therefore, that he should fix the scale on the amount recovered on that head of damage if the plaintiff succeeded, but if the plaintiff entirely failed on this phase of his claim than having succeeded on this argument he should be credited with scale costs on the lowest scale on this argument. H's Honour intimated tbe* >f n ocecsary he was prepared to consider written arguments on the question of costs.