Recent Judgment ACCIDENT DEATHS COMPENSATION

Press, Volume XCVIII, Issue 29057, 20 November 1959, Page 19

Recent Judgment ACCIDENT DEATHS COMPENSATION

Public Trustee v. Fletcher Steel And Engineering fc IBv a Legal Correspondent} (Before Mr Justice McGregor, at Wellington) A “class fund” is an amount held in one sum by a trustee for a group of persons, such as a family. Subject to any directions and conditions the Supreme Court may impose, the method of applying the fund is left to the discretion of the trustee, who rhay pay capital or income to any member of the class to the exclusion of others, in such shares and proportions as he sees fit, to meet their changing circumstances.

In April, 1955, one Dock was killed by accident in the course of his employment When he died he had two dependants, his widow aged 25 years and a son aged 2 years. The Public Trustee, on behalf of those dependants, began an action against the deceased’s employers under the Deaths by Accidents Compensation Act claiming damages. On August 3, 1956, the Supreme Court approved a compromise of the claim in the sum of £4OOO. It made an order that that sum should be held by the Public trustee (I) to pay the balance of the Public Trustee’s solicitor and client costs: (ID to pay to the widow a lump sum of £500; and (III) to hold the balance on trust as a class fund for widow and child, with authority to advance moneys on mortgage if the widow should desire to purchase a home in New Zealand. At a time of the Court’s order the widow and child had gone to Scotland on a visit to the widow’s relations, and the Court authorised the Public Trustee to use part of the class fund to enable the widow and son to return to the Dominion.

After the Public Trustee had paid the amounts authorised under (I) and (ID of the Court Order, as well as steamer fares to Australia, sundry amounts for the maintenance of the widow and son, and payments to assist in furnishing a home the class fund stood at £2547 Ils 4d. Widow’s Application

The widow now applied to the Court for an order allocating part of the class fund to her personally. The widow remarried in Sydney and is now permanently resident in Australia’. The child is now six years of age. For the widow, it was suggested that she should receive a further lump sum of £5OO (she had already received £656 12s 8d) for her benefit, in addition to the lump sum paid in pursuance of the Court’s order on the compromise. The amount already expended for the benefit of the child was £383. As a result of inquiries it ap-

peared that the character of the second husband was poor, and he was addicted to drink. The widow was described as extravagant and lacking in principle and decency. She had a child by her second husband, and the child of the deceased was said to be neglected. Court’s Powers Mr Justice McGregor, who heard the widow’s application, said that the Court had wide powers under 5.16 of the Deaths by Accidents Act 1952 to vary any previous order. By s.lB, it was empowered to, take into consideration any circumstances which had arisen after the death of the deceased person, and the probable further needs of the dependants. His Honour went on to say that the right to damages under the Deaths by Accidents Compensation Act, 1952, was a statutory right. The principle was well established that the damages were recoverable by the members of the deceased’s family only to the extent of the loss of pecuniary advantages, as a consequence of the death, to the persons for whose benefit the action was brought. That was the only injury recognised by law. Accordingly, the prerequisites to a claim under the act were relationship and loss of pecuniary advantage through the death of the deceased, or reasonable probabilities of future loss of pecuniary advantage. Under s.lB of the act, the Court was entitled on the widow’s application for a lump sum payment to take into consideration any circumstances which had arisen after the death of the deceased, and the probable future needs of the dependants. Here, the subsequent marriage of the widow was an important circumstance to be taken into account It could substantially affect her future needs. Child’s Needs First Mr Justice McGregor held that, in this case, the needs of the child were paramount He would require full maintenance for a period of at least 10 years. It seemed he would have little hope of proper assistance from his mother or stepfather. On the other hand, the de-

ceased widow should be supported by her new husband, thriftless though he or she might be. He was able-bodied and capable of supporting his wife. Moreover she had already had a substantial amount £1156, out of the net damages of approximately £3BOO. His Honour said that the balance remaining, £2500, might be no more than sufficient for the requirements of the child till he became self-supporting. The child’s mother, so long as he should live with her, would receive an indirect benefit from any provision for her son’s maintenance. This might be of greater benefit to her than a lump-sum, which must assuredly prove evanescent. The Court, therefore, ordered that the balance of the fund should be held by the Public Trustee in trust for the deceased’s son. In the event of his dying under the age of 21 years, the fund should abide the further order of the Court.

Counsel: For the applicant, Rose, for the Public Trustee. Stokes. Solicitors: For the applicant. Macalister, Mazengarb, Parkin and Rose (Wellington): for the Public Trustee, Public Trust Office solicitor (Wellington).