Supreme Court.

Manawatu Standard, Volume XL, Issue 7923, 1 October 1904, Page 5

Supreme Court.

■ —?» - p: -»',l - ■ ' 'SATURDAY.

' (Before*Mr Justice Cooper.)

Kelly v. Fake

Judgment.

At the Supreme Court this morning Mr Justice Cooper"delivered judgmenton the law points raised in the above ease as follows:—

This is an action brought under the provisions of," The Employers Liability Acts "by the plamtiff suing on-behalf of himself and all the' other legal representatives of John David Kelly, late of Palmerston North.;.,bricklayer, deceased, to recover damages- under those Acts sustained by reason of the death of John David Kelly.. No'.pi-pbate or letters of admimstratiorinofcthe estate of deceased have been grahted&vThe' deceased was killed on the 12tliJuly:last;by accident arisihgoutof andv:'iii: the course of his emplbyment.by^ihei-Vdefendant, caused, it is alleged; by.,the;-breach by the defendant of sub-sections 1 and 2 of, section 8 of "The Employers Liability Act, 1882." The deceased-left no wife, parent; grandparent, child, .stepchild, or grandchild, surviving hum The plamtiff is a brother of deceased, "and he sues on behalf of himself, ;a;y6unger bi-bther, and two sisters of the deceased. The questions are" (I)'whether he can, under "The Employers Liability Acts" maintain this action as one of the persons entitled under section 3 of "The Employers Liability Act, ISB2 ?,' to recover compensation in: case of. death, and (2) can he' |do so if, as one of the next of kin of the ! deceased, he is appointed his administraI tor and legal personal representative. Section 3 provides that incase the injury to the workman results in death, the legal personal, representatives of the workman, and any person entitled incase"of death, shall have the sazne right of comperisatioirand remedies against the employer, as if the workman had not been a work-, man of,- nor. in. the service, of the employer, nor engaged, in his work. This provision, therefore, in mv opinion, limits the right of action to"those persons who are within the classes defined under " The Deaihssby: Accident Compensation Act, 1880.". VTho effect of it| is to give to those classes of persons a I remedy which they .'did not previously I possess against the "employer of a deceased relative where;the death of that relative has arisen by personal injuryhappening to him in his employment, caused by : some one or more of the' matters stated in subsections 1, 2, 3, 4, and .5 of section 3. Before the- passing of Lord Campbell's Act 9 and 10, Vie. c. 93, the doctrine actio personalis vioritur cum persona applied and the right of action died with the person injured. This Act was adopted in this colony by the English Acts Act 1854, and continued in operation until "The Deaths by Accident Compensation Act, '1880," which substantially re-enacts its provisions. Under the Act of 1880 the liability of a person by whose wrongful act, neglect or default, another person has been killed, is only in respect of damage sustained by the classes of persons referred to in sections of that Act, namely, the wife,, husband, ..parent (as defined-in the interpretation clause) and child (as defined in the interpretation clause), and while the action io recover such damages may be maintained by the executor or administrator of the deceased person, section' 4 expressly provides thatsuch action shall be for the benefit of the wife, husband, parent or child. The term " legal personal representative " used in section 3 of "The Employers Liability Act, 1882," means the legallyappointed administrator of the estate of the deceased, and -therefore that Act did hot give the legal personal, representative.of'a deceased person any, right to maintain an action for damages or compensation resulting from the death of such personif there were no personsin existence for whose benefit an action could under sections 4, 5; and 6 of " The Deaths by Accident Compensation Act, 1880," have been brought. " The Employers Liability Act, 1852," has been amended by the Act No. 10 of 1891, and section 10 of that' Act provides that "Where personal injury to a workman who is _ illegitimate results.in death, the same rights of compensation shall exist ■for the benefit of his mother, or of brothers and sisters by the same father and mother,' as if he and such brothers and sisters were legitimate." ...By section 6 of "The Legitimation Act, 1894," the definition of the word "child " in "The Deaths by. Accident Compensation Act, I860," was amended by the inclusion of the word "illegitimate child,^ ancl ; the classes; of. persons entitled to'recover, damages arising from the death of a person was to'that extent extended.. -But section 10 of the Act of 1891 only gives to the relations of an illegitimate deceased workman the same rights to':compensationas they would have had had the workman been legitimate, and the lights in respect of. the, death of a legitimate .workman have not been! extended beyond the classes defined in tho -Act. of •: 1880 as by " The Legitimation Act, 1894.". ," The Amending Act of 1891,',' therefore, while it refers to illegitimate brothers and sisters, of. a. deceased workman,, does hot' giye'-'them any other rights than , ]egit___at_Y brothers and sisters possessed before the passing of that Act, the duly.- effect being to- extend any rights which these, legitimate relatives: possessed, to illegitimate relatives of the same degree. YY. Nor can the wider provisions of "The Workers Compensation Act " as-, contended by Mr Baldwin be read into* The Employers Liability. Acts. That' Act is specif legislation, independent of -The Employers Liability Acts, creating special liabilities and special rights, and - extending- to persons who are not within ithe-..-prior-'- Acts. It cannot be read ?as controlling nor. j affording a means for the interpretation of the provisions oi terms of "The. Deaths by Accident Compensation Act,'Y or ol "The: Employers Liability. Act."! Subsection 1 of section .7 of "The Workers Compensation Act; 1900,"; expressly provides that nothing in that Act shall affect; any civil"liability of an employer independently, of that Act, and subsection 2 provides that a,worker may at his option claim compensation under that Act oi-take sucß proceedings as are open to him: independently of that Act, but with a proviso "that ah employer shall not be liable to pay compensation independently -of:''and; also ;under- tHatAct, : and .^shail;: not: be; V liable to pay; compensatioh mdepehdently of that Act,"; except.: in cases ', where ;tho 'liabilityY "exists"■;; mdepehdehtly of that' Act. .'While]therefore, and sistersreome. within the class defined in that.! Act 'V as members of a; worker's •family," and cohsequently are ••depend-

ants" entitled to claim compensation under that Act, the provision of that Act must be confined to-claimants under those provisions, and cannot be extended' to the Employers Liability Acts and so be hold to bring within the scope of those Acts, a class of persons -who had not up to the time of the coming into operation of " The Workers Compensation Act," any right to claim compensation in respect of the death of a workman.

, The effect of the existing legislation is as follows:—

Under " The Deaths by Accident Compensation Act, 1890," as amended by "Tho Legitimation Act, 1894," the persons entitled-to claim compensation or for whose benefit an action for,compensation may be brought under that Act, are the perso/is defined.m section 4 as interpreted by section 2 of that Act, with the addition of illegitimate children of the deceased person, and these classes .of persons do not include brothers and sisters of the deceased. Under " The Employers Liability Acts," the persons who ' are entitled' to the benefits of those Acts are all the classes within the Act of 1880, including also, the mother of the deceased person, nothwithstandmg that the deceased person was an illegitimate child. Under the "Workers Compensation Act," the. persons entitled are the members of the workers' family particularised in the First Schedule to' that Act,''including' brothers arid.sisters, and now ; by. virtue of section 6 of." The Amendment Act of 1903," including also illegitimate sons and daughters. While, therefore, the -plaintiff is not entitled to claim compensation under "The Employers Liability Acts," he and the other brothers and the sisters of the deceased are within.the class of persons defined as dependants under." The Workers Compensation Act." ' V . I. answer the questions . submitted to -he Court as follows :^— ■,

1. The plaintiff is not entitled as a brother of the deceased to maintain this action. .

-^ 2. As the only surviving relatives of the deceased are his brothers and sisters and their children, the legal personal representatives of the deceased if administration of his estate is granted, cannot maintain any action under " The Employers Liability Acts " or under " The Deaths by Accident Compensation Act, 1880." '

Mr Cooke informed the Court that a settlement had been agreed upon and the case would not be continued.

APPEAL CASES.

. An appeal by Samuel Paul againstthe judgment of Mr A. D.-Thomson, S.M.; in the case of. Alice ,Eowe ; v. S. Pahl,' claim £10 damages to^a bicycle,' was dismissed with £7 7s costs.

__In the appeal case J. and M. Roots and Halcombe Bros., also against the judgment of Mr Thomson, S.M., his Honor reserved his decision.

Mr Moore appeared for the appellant in each case and Mr Haggitt for the respondents.

Both cases were heard at Feilding in the early part of the year. . ••