ACCIDENTAL DEATH

Dominion, Volume 23, Issue 73, 19 December 1929, Page 15

ACCIDENTAL DEATH

COMPENSATION DIVISION

WIDOW AND FOUR CHILDREN

Judgment was given by the Chief Justice (Hon. M. Myers) in the Supreme Court yesterday morning in an action brought under the Deaths by Accidents Compensation Act, 1908. by Kathleen Eva Kiernan, as administrator of the estate of her late husband, against Joseph Fitzgerald Donovan. Plaintiff’s husband met his death under circumstances which gave a right of action under that Act. The plaintiff, who is 31 years of age, sued on her own behalf and on behalf of the children of the marriage. There are four children, all girls, whose ages are respectively 14 years, 8 years, 4 years and 4 months. The youngest girl was born on August 12, 1929, just two days before the accident which resulted in her father's death. There had been pajd into court the sum of £2500 and £75 for costs, and the Court was asked to decide how the money was to be divided. It was suggested by counsel, said His Honour, that with the exception of a sum of £3OO to be paid to the widow, the whole of the money should be paid to a trustee to form one trust fund for the benefit of the plaintiff and the children. His Honour said that in his opinion this course was not justified by the provisions of the Statute. Method of Apportionment.

After citing judgments given in similar cases by Mr. Justice Chapman and Mr. Justice Cooper in New Zealand, and Mr. Justice Chitty in England, the Chief Justice said it seemed to him that the true principal to "be applied had been stated by Mr. Justice Chitty as follows: “The apportionment, however, must be made on the same principle as it would have been if the matter had been before a jury, and they would require to be satisfied that injury had in fact resulted to the persons claiming damages. In this case the principle of distribution must not be one of equal division, but in proportion to the damage sustained by.reason of the death.”

The Chief Justice said that in the present case the eldest girl was fourteen years of age and might be expected in a few years to be able to earn her own living. On the other hand the youngest child was but a few months old and required to be provided for for a very long period. It would be unreasonable, in his opinion, to say that these two children were to have equal shares in the fund. Sum for Widow. “I propose in the first place.” added His Honour, “to allow the widow the sum of £970. ! . . So far as concerns the sum of £75 paid into court for costs, that amount may be paid out to the plaintiff's solicitors. I understand that this sum of £75 is sufficient to cover the plaintiff's costs as between solicitor and client. T allow the sum of £lO out of the general fund for the costs of the solicitor and counsel appointed to represent the children on the hearing of this motion. There is left the sum of £1520 for the benefit of the children. The order of the Court will be that thht sum be paid to the Publie Trustee under the provisions of sub-section (2) of section 13 of the Public Trust Office Amendment Act,' 1913. These moneys are to be retained by the Public Trustee for the present in the common fund of the Public Trust Office until the shares of the children are defined. When the shares are defined the capital for the time being of each share will be invested by the Public Trustee in the common fund and be disbursed by him for the maintenance and education or otherwise for the benefit of the child entitled thereto. . . . Subject

to any special consideration. I suggest that the fund may perhaps be divided on the assumption that each child would in the general course of events, had the father lived, have been maintained by him up to the age of. say. 17 or 18 years. The probable expense of maintaining a girl up to the assumed age. taking due account of the different amounts required during different stages, should then be taken into consideration with the object, if any portion of the fund would remain nt the end of the assumed ago. of providing that as each child attains the assumed rtge ench will have left as nearly as possible the s.’tne amount of capital. . . . Ponding the further order of the Court defining the shares of the children the Public Trustee may in his discretion pay the interest of the whole fund tn the widow for the support of the children. The Public Trustee will have liberty to apply ex parte to the Court in case ho should require advice or directions, and all parties will have liberty to apply generally.” At the hearing Mr. C. A. L. Treadwell appeared for plaintiff and Mr. Parry for fhe representative of the infant children.