The Dominion. FRIDAY, APRIL 23, 1909. LAW AND JUSTICE.

Dominion, Volume 2, Issue 489, 23 April 1909, Page 4

The Dominion. FRIDAY, APRIL 23, 1909. LAW AND JUSTICE.

*. ■ The important decision given by Mb. Justice Dennistox on Wednesday in the case of Bakton v. the' Kino reveals a.difference between law and justice which should be remedied at the very earliest opportunity by amendment of the statute. The suppliant was a tramway motorman, and about a year ago a steam wagon used for the delivery of coal from the State depot collided with his car, crushing in tho front) and causing shocking injuries to the suppliant by which ho is still incapacitated from doing any work) and which will, it-is said, cause him to be hampered throughout life. in ' earning a livelihood. The accident was allegedly caused by negligence, in the driving of the steam wagon. But the State, against which a case was brought for £1500 damages, had no need, as a : private,employer would have, to defend itself from the charge of negligence on tho part of its employee. A technical defence was raised under the Crown Suits Act, which was passed in 1881, when. the State in New Zealand was much more limited" in its functions than it is to-day. This Act provides as follows:— "No claim or. demand shall be mado upon or against His Majesty except in respect of a wrong or damage independent of contract done or suffered . . .-, in) upon, or, in connection with a public work,' moaning thereby any railway, tramway, road, bridge, electric telegraphs, or other work of a like nature used by the Government of New Zealand, or constructed by such Government out of •moneys appropriated by Parliament, and the revenues whereof form part of tho general revenue" Mn. Justice Desniston, ' after hearing argument, -decided that for the suppliant's case to succeed it must be shown that the main work with which ,the State was concerned in the case—the State coal mine—was a public work of a like nature to those enumerated in the statute. He admitted that it was a public work, but it was not a public work "of a like nature to a railway, tramway, road, bridge, or electric telegraphs," and therefore the State was immune from action under tho law. In another case tho Court of Appeal had hold that a certain wharf was a public work under the Act, but the Judges had apparently been influenced by the facts that the wharf had, rails upon it, which gave it a resemblance to a railway, and that it was also in some measure similar to-a bridge. His Honour thought it was quite clear that tho intention of the clause might bo to iniludo all Government uudoi'taklngs io,.

which manual,..as distinct from ..clerical, labour was ; -employed, ..but.'in : : tKat case he was afra.id,therc ;had b.e.eri.:a.failuro to give effecfe: : .Had. been agreed, to ..treat .the : ...,a'rgument as trial of 'the-action';;,judgment.:was., given,' for the }wiib!:" costs' 'and dis::' biirsoraehtsiV.--;:i , '''.i,-:.'^.-L\.;.\v\ : !: .'..- : ':.'.■■ Tho case is:..an::impbrtarit one from.sevoral ;In:.thie.,; : place,;. it is clear ''that when -tlie ). Act; was ■■passed, the works 'enumeratediia■thesection were, the only'-'public-works /with;- wjiich- ifc Government the Government'has opened;' a"State'-'Goal'.. Department,' and runs..sfeam; lorries:/ for■ the delivery of' : it's:icoar..'";'-'iM6tpi;-jear"B:''are." also used by; tho. -Ebaial,-.Department;' in'.; Wellington; to..clear-thp-city - Apparently the., :dri vdrk-bf .these -vehicle's could, bo' as reckless, as.i.th'ey; chose;/>hd. kill or injure as'many : persons'as',, they! pleased,, yet under-'tbis-A'ct there'..-would-be no case for:,damages:.against the. : Gov--ernment.. No, other .concern enjoys, such an immunity,.-and .by:':-avoiding .; its moral liability in this) way on , a':, technical plea, the.Government throws';the'rev sponsibility of providing for the injured; worker, upon his employer, who.may be in no wise to blame : for the accident; - but is compelled.-.:':' by; the .. Government to make provision for. disabled employees. Moreover, if the Government: is. to be left free, in cases like the one under notice, to ignore its moral responsibility, or to escape payment by the raising of a technical quibble, repeated opportunities will be given for a .'differentiation of treatment between weak and' strong, the Government's' friends . and foes, moremischievous than the original immunity. Already.there has been an example' of this, as is pointed out in the interesting series of opinions on the law given in another When the I}armerß' Co; operative Association brought a case against the' Crown for committing a nuisance, counsel for the Grown explained that though.the State need not recognise any claim of the kind, it had decided to waive that right, and give plaintiffs the opportunity of having .their claim decided by a jury. In that case plaintiffs were an influential company controlling numerous votes; arid' so they received, as they fully deserved, equitable' treatment, but a humble' tramway motorr .man, with no votes behind him to conciliate, is in quite. another category, and a legal subterfuge is judged sufficient answer to his claim to redress. Differentiations of policy, which; are always liable to recur, naturally arouse suspicion and distrust, and should be" terminated by an amendment "of the law next session which will place tho State more nearly in the same position as private individuals and companies in regard to its responsibility for accidents when discharging miscellaneous functions .which have been assumed by it in recent years.