Railways liability bill still delayed despite assurances

Press, 24 August 1976, Page 7

Railways liability bill still delayed despite assurances

By CEDRIC MENTIPLAY

Wellington

If you lose a package consigned by the Railways Department. you may receive no more than $4O, no matter what the value of the package may be.

This is a fact of life which has been disturbing the commercial community for many years—particularly as it is now nearly eight years since the Contracts and Commercial Law Reform Committee produced its report on the carriage of goods. The committee recommended substantial changes, including a thorough revision of the limns on liability enjoyed by the Railways and by other car-

Successive Governments over the last seven years have made assurances that amending legislation would be introduced. It is known that the Labour Government of 1972-75 had a bill prepared which might have been presented had Labour won the General Election last year.

No such legislation has yet arrived before Parliament. Earlier this year the Minister of Justice (Mr Thomson) wrote to a commercial federation which had expressed its concern, putting the blame for the delay on the lack of qualified law draftsmen, combined with pressure on Parliamentary time. Mr Thomson added: “A bill was drafted last year and sent to the Transport Advisory Council for its comments. My colleague, the Minister of Transport (Mr McLachlan), has advised me of the council’s views on the bill, and I am confident that legislation can at least be introduced, if not passed, this year.”

It is believed that the council believes that the draft bill will require careful consideration by a Parliamentary select committee be-

I cause of its complexity. But 'this information (and the council’s decision) are now more than three months old —and the bill has to be introduced into Parliament before it can be passed to a select committee.

Inquiries made since the presentation of the report of the Contracts and Commercial Law Reform Committee in 1968 reveal a remarkable : situation. In February. 1970, the Genera! Manager of the Railways Department, advised byletter: “I understand that a bill will be introduced into Parliament during the current session.”

On June 22. 1973. the Minister of Justice (Dr Finlay) wrote. “The Government hopes to introduce a new I cartage of goods bill this session.’’

On February 22, 1973, Dr Finlay advised: “The Government intends to introduce this year legislation to give effect to the committee’s report.” On November 5, 1973, the then Minister of Railways (Mr McGuigan) said: “The Government is now working towards the introduction of the bill in 1974.”

On December 13, 1974, his successor (Mr Bailey) wrote: “It is the Government’s intention to bring this legislation forward in the coming year, and it is hoped that many of the anomalies that now exist can be o"> ercome.”

In February’, 1975, Dr Finlay advised: “I am assured by a senior member of that body (Parliamentary Counsel) that he hopes to have a bill ready this session.” In his letter of November 5, 1973, Mr McGuigan informed an inquiring group that although the report was published in April, 1968, it was two years and a half before it became the basis of instructions to the law draftsman. He said that no progress was made in 1971 and 1972, and in 1973 endeavours by the Government

to introduce the bill had been prevented “because of the pressure of other, more urgent needs on the law draftsman.”

In a letter to the Minister of Justice in May, 1975, the general manager of the New Zealand Timber Merchants’ Federation (Mr C. R. Gibbs) commented: “It is of course the prerogative of the Government to determine its legislative priorities, but it is difficult to believe that the Government truly thinks, and expects industry to accept, that the proposed bill is of such little importance that its introduction could be so long deferred solely because of pressures on the law draftsmen.”

Though costs have risen dramatically since the present legislation was passed, the Railways Department still pays out on the basis of $4O a package for goods lost or damaged. Some adjustments in individual cases have been made, and it is suggested that goods carried by the department across Cook Strait are covered for about their full value — but nothing has yet appeared to increase carrier liability generally. No date has yet been set for the introduction of the bill which, however complicated it may be. is obviously favoured by both sides of the house. Railways has settled in some cases in excess of the statutory liability—but these have the flavour of ex gratia payments so long as the $4O limit remains in the statute book.

An answer by the general manager of Railways (Mr T. M. Small) a year ago is an indication of Railways practice. The correspondence related to a claim over the loss of a “package” of particleboard (which the department subsequently settled by payment of an extra amount). “I should like to point out that the case you refer to (where an additional ex gratia payment was made to a timber firm) had no relation to any decision by the

Government to alter the statutory amounts payable as compensation,” Mr Small wrote.

He explained that he had fully investigated the previous matter at the request of the then Minister of Railways (Mr McGuigan) and had advised the additional payment because he thought departmental employees may have been negligent. Mr Small added: “I should also like to point out that the department does not strictly adhere to its statutory limitation of liability. Very many claims are settled for greater amounts when the circumstances surrounding the particular case of loss or damage indicate that a higher payment is justified.” This however, is hardly an explanation. The authority whose servants may have been in error is acting as judge in individual cases, but how many others are simply not questioned, when the member of the public who has suffered loss is awarded the stated maximum of $4O? It is hoped that the bill, which has been in existence for at least a year, is accelerated to the stage where it is brought before a select committee.

This would at least give vitally interested bodies a chance to present their views.