"UNBEARABLE."

Auckland Star, Volume LXIV, Issue 253, 26 October 1933, Page 7

"UNBEARABLE."

EMPLOYERS' LIABILITY

PRIVY COUNCIL DECISION

DEATHS IN EARTHQUAKE.

"The most momentous event of the year in the insurance world, and one affecting the public very seriously, is the recent decision of the Judicial Committee of the Privy Council, reversing the Court of Appeal's decision in what are known as the Workers' Compensation cases," said the chairman of directors, Sir George Elliot, at the annual meeting of the South British Insurance Company to-day. "This decision gravely concerns employers owing to the incalculable liability imposed upon them by what almost might he termed the esoteric meaning ascribed to the apparently simple words "arising out of" in the Workers' Compensation Act. That Act is the outcome of a process of evolution. It is important to recall that process. "In the beginning, an employee, in case of injury, had no better right than any other person to be compensated. Liability for compensation rested on an employer only when the injury was due to his own negligence. Negligence of a fellow workman did not make an employer responsible. It was rarely, then, that compensation could be recovered. The idea that an industry should pair for injury incurred in its operations had not been born. The first sign of it was slight. * Legislation was enacted to confer on certain near relatives the same rights to recover damages as a deceased person would have had if he had not been killed. The next step was a comparatively short one. The Employers' Liability Act made an employer responsible for injury when an accident was caused by negligence of a fellow workman exercising superintendence, or by any defect in plant or machinery not discovered nor remedied owing to negligence of the employer or his responsible officials. « A Long Stride." "The next step taken, nearly 20 years after, was a long stride. The first Workmen's Compensation Act was passed, conferring upon a large class of workmen engaged in certain occupations specified as dangerous a right to compensation upon mere proof of accident resulting in disablement. Industries involving danger were thus required to provide compensation for injury incurred in their pursuit. - , "Less, than ten years later a leap forward was taken. In place of an Act which excluded from its scope all workmen not expressly included, the new Act included all" but a few classes expressly excluded. The principle governing this evolutionary process is compensation for due to the occupation. Simple wor3s- to express this were used by the legislators. To obtain compensation for disablement it must' be shown that it was due to 'personal injury by accident arising out of and in the course of the employment.' Simple though , they are, and clear their intention, no phraseology could have been more prolific of litigation than the words 'arising out of the employment' used in the Workmen's Compensation Act. The meaning sought to be imputed' to thesei words, as case succeeded case, was stretched so widely that great subtility came to be displayed in applying the general principle that the injury should ' arise out of * the employment. Conflicting decisions resulted, but, until the recent decision, one condition remained to distinguish certain cases, the distinction between danger;' of a place and danger occurring ' in 5 a. place. This distinction is illustrated by two cases quoted by Lord Atkin in giving, the Privy Council's decision." . That decision, said Sir George, disregarded the obvious meaning of the simple words. Truly, the members of the Judicial Committee used the right word in referring to their interpretation as "capricious." Consequence of Decision. "The members of the Judicial Committee of the Privy Council decided that in the four cases before them of injury or death incurred during the earthquake at Napier on the morning of February 3, 1931, each was by accident arising out of the employment," continued Sir G-eorge. "The four cases were merely examples. Hundreds were injured or killed on that tragic morning. The death or injury of persons not in employment was the result of a common cause-t-the earthquake. The death or injury of employees, according to the Privy Council, was due to accident arising out of the employment, of which the variety of forms was infinite.

"Let us apply this to the case of a shop destroyed by earthquake, the owner, an assistant, and two customers, being killed. The death of the assistant would have been by accident 'arising out of the employment' of him in a shop, the death of one customer by accident 'arising out of the employment' of him by a publican for whom lie had been sent to buy a tie, while the death of the other customer would have arisen out of 1 the earthquake because, although also employed by the publican, he was not on an errand for him, having of his own accord, accompanied his mate to the shop.

"It amounts, then, to this, that should, for example, an eruption occur during working hours, overwhelming: Auckland as Vesuvius overwhelmed Pompeii, or Tarawera Wairoa village, every employer (or his estate if he himself were killed) would be liable under the Workers' Compensation Act to pay compensation to his employees or their representatives as for death or injury by accident 'arising out of' the employment in which each was working. Nay, not necessarily every employee, for any overwhelmed in the street by volcanic ash would have to show that the employment in which he was working involved special exposure to that risk. Amendment of Law Wanted. "Employers are thus carrying a liability not merely unreasonable but unbearable, from which they should be relieved at the earliest possible moment, and I suggest that no more important duty faces our legislators. In the United States of America, in cases similar to those at Napier, courts have decided that' the injury or death was not by accident arising out of each person's employment, but was due to act of God. A provision in the Workers' Compensation Act to exclude liability for injury jdue to earthquake eruption or other cataclysm of Nature may be the best 'course to adopt."