NO REDRESS.

Dominion, Volume 2, Issue 489, 23 April 1909, Page 6

NO REDRESS.

"THE KING CAN DO NO WRONG." A CASE FOR EQUITY, NOT LAW. 'M ACT THAT NEEDS AMENDING. In yesterday's issuo of Tub Dominion was published an important judgment delivered by Mr. Justice Donniston in tho caso Frank Barton v. tho King, his Honour having boen petitioned to rule as to whether plaintiff had a case that was legally strong enough to go to trial. The caso is one familiar to most of oor readers as arising out of an accident which happened in March of last year. , A tram was proceeding from west to east along Courtenay Placo, and whon passing tho junction of Tory Street and Courtenay Placo it was run into by a Stnvker steam , wagon, tho property of 'the State Coal Mino Department, which was going across Courtenay Place (at right angles to that thoroughfare), at a speed • sufficient to crumple in tho apron of tho car and break tho.pelvis of'Motorman Prank Barton, the plaintiff in the action. After the coal wagon Lad been extricated from the wreck it started off again on its own account, f ran over a .worthy crtizon's toes, and ploughing onward, carried away a verandah post aud an electrio right booster box. After a long and vory painful illness. Barton has recovered sufficiently to look after his own affairs. He would, wo havo authority for stating, have had no difficulty in getting tho full measure of compensation under tho .Workers' Compensation Act, but ho elected "to take aotion against the State, and.as a result has been "put out of Court" altogether by Wednesday's judgment, as in acting as he did (having ovory confidence in the strength of his caso) he renounced his right to claim undor the Workers' Compensation Aot. His Honour based his argument on a clauso in the Crown Suits Act which read:— , "No/claim or demand shall be made upon or against His Majesty except in respect of a iwrong or damago independent of -contract" done or suffered ... in, upon, or in connection with a publio worl, meaning thereby any railway, tramway, - road, bridge, electrio telegraphs, or other work of a like na-' ture used'by tho Government of New Zealand, cr constructed by such Government out of moneys appropriated by Parliament, and 'the i revenue thoreof formed part of the general-revenue."

Finally, .after arguing that a State coal tragon could not be specified as a' public - work under tho Act, ho said that the questions submitted, to the Court must 'bo answered as' follow :— (1) Did the petitioA disclose any cans©' of action or any valid claim or demand under tho Crown Suits "• Act, s 1908?— Answer: No. N " .', (2) Was tho damage allegei.'to havo been suffered by the suppliant a $amago suffered in, upon,' or 1 in connection -,with a-public work as defined in Section 35 of tho Crown Suits Act, 1908?—Answer':*"" ' No. _ This ended Barton's chances of compensation, and, in addition, ho is mulcted in considerable costs —this on'top of an accident in which ho sustained injuries, tho effect of which he will feel life, and for which he was not'in the' least degree responsible! i An "Outrageous" Position. The case seems such a hard one that rb was decided to ascertain by inquiry exactly how matters stood in regard to the State and tho public, in regard to claims for accidents as revealed in tho action undeT review. "The position is an outrageous one," said a well-known lawyer;to whom the facts were presented. "I don't say tho judgment is not a right one, but it reveals a very unsatisfactory position as far as tho public is concerned. , According to this judgment, a State coal employee can run these steam lorries, or, in fact, any vehicle as negligently as he likes, injuring people in various ways, without any claim being recognised. The State is absolutely irresponsible—it is not liable for any injury suffered by any person in its commercial or industrial operations other than such-as are nominated as public works in the Crown Suits Act. His only other redress is .to suo the driver, which alternative is hardly 'worth noting for obvious reasons. "It is tho old thing—'the Bang can do no , In England tho,State or Crown can only be sued for breach of contract, but . thore, of course, the Government,do not go in ,for State ownership-of railway?, tramways, coal wagons, etc. Here in Now Zealand the liability of the Crown is extended to take in railways, tramways, roads, bridges, electric, telegraphs, ',or other works of a like nature.' Ohis, unfortunately for Barton, does not - mention tho State ooal business, for tho Simple reason that tho Crowns Suits Act was x passed as far . back as 1881 " and the pntajio works enumerated in tho clause quoted above were all that tho Government was interested in at the timo. Since then however, the State has been extending commercially and industrially; but tho Act has not been amended to tako in ,the new undertakings which may actually bo set down as public works, .though .the Act of '81 does not include them." What about tho State mines? .TWo is a special clause in the Act which brings workers in tho Stat© coal mines under the provisions of the. Workers' Compensation Act." " ' But surely there are other cases where tno btato has.been sued for damages over accidents or inciderits apart from the undertakings noted in tho Crown Suits Act as publio works? ■ ' "Well; accidents have' occurred, but usually w connection with the .railways, which a /°, .Pjoyided for There was a case at tho Inhibition, in which- Scott sued tho Government for damages done w> his stalls, or business,; by tho-action of .the manager (Mr. ?i!^ ro, ' d ** r ? :eiTcd compensation, but that was because there was a breach otf con- !?«. '■ LIV^ 1 - 817 accidont ha( J occurred at tho Exhibition, say by a board faffing on a visitor, tho State need not accede to, w „ e ™. 11 ? 1 ", any claim for'damages. m«J + 11 no^ decl > »f course, is an amendment to the Crown Suits Act, that would embrace all the State's now undertakings. It should 'bo seen to at once-next session." Another Authority. Mother gontleman—a prominent citizen— who is interested in the administration of the Workers' Compensation Act, said that it seemed, to hrm that tho Government enjoyed an immunity from liability which was not extended to tho private employer, and which must militate against tho latter whore there was competition. In this case it had been pretty coiiclusively proved that the SsJfJ™ dm »» «raM do much as they K'A™ Clium cou]tl be matlo good ?.f °£ rnmcnt \ n ° Portion n ol v was that the trams could bo made to pull WnTJ «!ffi *° al !° W ?. Stato o™ l TO©" to go by, if the municipality.wishe'd to avoid any suspicion of liability to accident. The wagon-dnvors could say-«W 0 are top-dogs; 'IS? does happen." "In the case under notice,. I understand that a well-known citeen was injured seriously, and I under- !^^\ bIU - ,* don;t SW! wh y tho Crown should not have done as they did when tho btato Coal Department was sued by tho Fanners' Cooperative Association for comth* tea "\ h,s °P° nil S address that the State need not rccogniso any claim of the kind, it had wZ Ct right, and give plaintiffs the opportunity of having their claim decided by a jury In that case tho plaintiff company was a community of fanners, controlling a largo number of votes, and so it was deemed discreet to deal them, but in this caso it was but a unit of tho public,.and though he suftered grievously, it evidently did not matter.