FATAL ACCIDENTS

Evening Post, Volume CXVIII, Issue 50, 28 August 1934, Page 10

FATAL ACCIDENTS

LEGAL LIABILITY

SUGGESTED LEGISLATION

By request, Mr. P. J. O'Regan addressed the members of the Insurance Institute and Officers' Guild of New Zealand last night-upon "The Deaths by Accidents Compensation Act, 1905." Mr. W. 12. Orsborn presided.

It was a popular misapprehension, Mr. o'.Regan explained, to describe an action claiming damages in respect of the denth of anyone as an action at common law. The common law of England gave no right of action in respect of the death by accident of anyone, the maxim of common law being that a personal right of action died with the person. Accordingly, although a person injured by accident due to thu negligence of another, had a right of action for damages, yet if either party died before judgment was obtained, the right of action was gone. It was otherwise by the common law of Scotland, where the relatives of a person injured through the wrongful act of another were given what was called an action of solatium. FIEST LEGAL CHANGE. The first modification of the English common law rule was made by the .Fatal Accidents Act, 1846, usually termed by lawyers Lord Campbell's Act. By that Act a right of action was conferred on the wife, husband, parent, or child of a deceased, provided (1) that the plaintiff had suffered pecuniary loss by the death and (2) that the death was caused by the negligence of the defendant. The Act was not in force in New Zealand, but it was adopted by our English Acts Act, 1854. Under the original Act action had to be taken by the executor or administrator of the deceased, but by an amending Act of 1864 the persons indicated by the principal Act were permitted to sue direct. Both English Acts were included in our Act of 1880 entitled the Deaths by Accident Compensation Act, which had since been included in the Consolidated Statutes of 1008. Although the legislation was considered revolutionary in ■ 1864 it was subsequently ascertained that the remedy was not nearly as important as appeared at the outset, continued Mr, O'Regan. Any defence which might have been available against the deceased had he survived was available in proceedings brought under the Act, and hence the plaintiff was liable to be met by the defence of contributory negligence on the part of the deceased, or, if the relation of master and servant existed between the deceased and the defendant, the right of action might be lost if the defendant showed that the accident was due to the negligence of a fellow-sorvant, because by the common law of England an injured worker was unable to recover damages if he was injured by the negligence of a fellowworker. Again, it had been settled thai; a plaintiff could claim nothing for grief or suffering, or medical or funeral expenses, a'ud if the plaintiff had benetited under any. policy of accident insurance by. reason of the death, that benefit was set off against.the employer's liability. In this connection the common law of Scotland was much more liberal in that medical and funeral expenses were always ' recoverable and grief and suffering could bo- taken into account in assessing damages. DAMAGES AND INSURANCE. In this country the .defeneo of a fellow-servant's negligence had been abolished in respect of mining accidents since 1874, and since 1908 the defence hud been abolished generally. It was still the law, however, that a right of action was lost if the defendant died before judgment was obtained, and accordingly in a recent motor accident where the driver whose negligence caused the accident was himself killed, the widow of his companion who was also killed was. left without a remedy, notwithstanding the provisions of the Motor Vehicles (Third-party Risks) Act, 1925. la England amending legislation had been passed providing that damages should not abate if the deceased himself had a policy of insurance, but New Zealand still lagged behind. ' . . i The lecturer accordingly suggested that in order to bring the law .into line with common sense and humanity, amending legislation should be passed on the following lines: — ■ . 1. That the right of action should not be lost by reason of the death of the defendant before judgment, but should be maintainable against his estate or insurer, as the case may be. 2. That medical and funeral, expenses should be recoverable as items of special damages; and . 3 That insurance moneys payawe to the plaintiff by reason of the accident should not be deducted from the amount of damages awarded. ' ■ PASSENGERS.BY SHIP. The speaker pointed out that the Death by Accidents Compensation Act was virtually non-existent as far as a very large section of the public was concerned, for the reason that shipping companies had long since adopted the device of printing, conditions on the tickets issued to passengers exempting themselves from liability for accidents. •Passengers very rarely read these conditions, but they were bound by them nevertheless, and the legal result was that although a shipload of passengers might be drowned through carelessness the surviving relatives had no legal redress. This shocking state of the law had been modified as far as service ca.rs were concerned by section 13 of the Motor Vehicles (Third Party Risks) Act, 3928, and it was gratifying to know that 'a Bill was now before the House of Representatives making similar provision in1 the, matter of air travel. Accordingly, it was to be hoped that remedial legislation would shortly bo enacted saving the rights of sea passengers. . A great many questions were asked and answered, an interesting discussion followed, and a very hearty vote of thanks was accorded the speaker.