Evening Post. MONDAY, OCTOBER 30,1933. "A COMMUNITY RISK"

Evening Post, Volume CXVI, Issue 104, 30 October 1933, Page 8

Evening Post. MONDAY, OCTOBER 30,1933. "A COMMUNITY RISK"

Lawyers and employers were not slow to appreciate the revolutionary effect of the decision of the Judicial Committee- of the Privy Council in the Hawke's Bay earthquake cases, and since the discussion of the subject by Sir George Elliot at the annual meeting of the South British Insurance Company on Thursday the man in the street and the men in the Government and in the Legislature ought to have a pretty clear idea ] what it means. The liability of *the j employer to pay compensation under I the Workers' Compensation Act to his employees or their representatives has been extended by this decision to accidents arising from earthquake. That such a liability was beyond the contemplation .of those who drew up and passed the measure is beyond question. Though, on the face of it, the Workers' Compensation Act of 1900 was a characteristic product of the Seddon regime, not Richard Seddon but Joseph Chamberlain was the originator of the new liability established by the measure; and the clause which has now been held to cover earthquake risks was copied from the British Workmen's Compensation Act of 1897 with no more thought of such risks than was in the minds of the British Minister and Parliament that led the way. But, as everybody knows, it is not what the Legislature means but what it says that matters, or, to put it more precisely, though it is the duty of the Courts to determine the meaning of the Legislature they can only do so by examining what it has said. The uncertainties of legislation and litigation would certainly not be diminished if Hansard were admitted as a legal authority to qualify the plain language of an Act of Parliament. Another thing which the same principle compels the Courts to ignore, at any rate, where the language is clear, is the effect of their decision. The policy of a measure is a matter for. Parliament, and the Judges would be not interpreting but legislating if they allowed their own views of policy to colour their decisions. A wistful glance was taken at this forbidden field by one of the business men whose views on Sir George Elliot's statement we reported on Saturday. It is, bo said, quite easy to imagine that however eminent the great Judges were who decided these eases in England, they were not able to visualise as a layman in New Zealand" could visualise the tremendous effect' of an earthquake, and indeed of theiv judgment. A layman in New Zealand may be better able than the Judges of the Privy Council to appreciate the physical effect of an earthquake, and perhaps also the legal effect of their decision in this case. In both these respects our own Court of Appeal enjoyed a similar advantage over the Judicial Committee. From the judicial point of view it was indeed not an advantage but a handicap, and both tribunals must be presumed to have dismissed it from their minds. The legal maxim, "Fiat justitia, ruat coelum"—let justice be done, though the heavens fall—submits the responsibilities of a Judge to an even severer test than these Hawke's Bay cases. The falling of the heavens would be a more serious trouble than the shaking of the earth. It is certainly not for a layman to attempt to prove that the Judicial Committee of the Privy Council does not know its business, even when he has a unanimous judgment of the New Zealand Court of Appeal to back him. In form the Judicial Committee's decision is also unanimous, but unfortunately its decisions are always given that appearance, and it is quite possible that in this case two of the five Judges agreed with the Court of Appeal. The speculation is interesting but futile. The highest tribunal in the Empire has spoken and, so far as the Courts are concerned, has said the last word. The point was obviously as nice a one as the heart of a profession which delights in the splitting of hairs could desire. To say that a worker who was crushed by a falling wall had died from an accident "arising out of his employment" when the cause was "an act of God" which shook the whole city, and a man in the street on the other side of the wall might have suffered the same fate seems to the untutored eye of common sense unreasonable. But in one of these Napier cases a man in the street who actually was killed in this way was held to come within the section because he was acting at the time in the course of his employment. And it would certainly require a subtle mind to distinguish these cases from the two cases of injury by lightning on which the Privy Council Judges relied. The practical interest, of I hose cases is now. however. ;i jnatler not

of statutory construction but of public policy. From this standpoint, with which, as we have said, the Courts were not concerned, the argument of the respondents' counsel is surely irresistible. They argued "with great power," says the judgment, that the destructive force in these cases was "a natural force quite unconnected with the employment"; that it "exposed everyone within the area to a similar risk of danger from falling walls"; and that such a case of "community risk" was-distinguish-able from those cited in support of the appeal. The argument which the Privy Council could not accept must commend itself to a tribunal whose special concern is public policy. Through an oversight of the Legislature which has remained undiscovered for more than thirty years a liability described by Sir George Elliot as both "incalculable" and "unbearable" has been imposed upon one section of the community. It amounts to this, that should, for example, an eruption occur during working hours, overwhelming Auckland as Vesuvius overwhelmed Pompeii or as Tarawera overwhelmed Wairoa village; every employer, or his estate if he himself were killed, would bo liable under the Workers' Compensation Act to paycompensation to his employees or their representatives as for death or injury by accident arising out of the employment in which each was working. It is in fairness a community risk, and the Government should see at once that the community shoulders it". '.