DISTRICT COURT.

Grey River Argus, 30 January 1906, Page 4

DISTRICT CO URT.

The Compensation Case

Leg«ai Point Dismissed.

Appeal Probable.

At the District Court yesterday Judge Haselden gave judgment on the legal point raised in the case, Panckhurst v. Franklin and Hosking—that as plaintiff had elected to accept compensation under the Workers' Compensation for Accidents Act he was barred from taking proceedings to recover under the Employers' Liability Act or at common law. For the plaintiff Mr Guinness and for the defendants Mr Hannan appeared.

His Honor delivered judgment as follows : —

"The defendant in this action claims compensation under the Employees' Liability Act for injuries received by ; h'.i|m on October 9th 1905 while in the employ of the defendants. The action was tried before a jury, who found fov the plaintiff, and awarded him £72 12s damages. The defendants, however, pleaded as a legal defence to the action that the plaintiff accepted 30s a week as compensation under the provisions of the Workers' Compensation for Accidents Act 1900 and urge that under section 7 subsection 2 of that Act this is a bar to the present action. The facts in this, point are that the defendants met iihe plaintiff, and obtained fron: him particulars for the purpose of filling up a claim under the policy of insurance they held from the Accident Insurance Co., and advised him to draw the amount coming tc him. The plaintiff says he said he did not want to take the money if ii would interfere with any claim he might wish to make, and wa: assured it would not interfere with such claim. He received £7 10s be ing five weeks allowance at 30s. He says, and the jury have so found, that on the same day, viz., Novem ber 13th 1905, he gave notice of .•: claim which would be sufficient under the Employers' Liability Act The defendants are insured unde--this policy for loss under the Em ployers' Liability Act, the Work ers' Compensation for Accident Act, and at common law. The re ceipt given by plaintiff fo'{r the £'i 10s reads as follows — 'Ocean Accident and Guarantee Corporation Limited of London Head Office for New Zealand, 4 Cus tomhouse Quay, Wellington, receiv ed,from the above Corporation the sum of Seven pounds ten shillingand no pence in part' satisfactioi and liquidation of all claims whicl I now have or may have against thf said Corporation or upon H. C. Franklin under policy No — oi otherwise in respect of an accident sustained by me on or about the 9tlr day of October 1905.— W. Panckhurst."

Datec^ !at Greymouth IJhis 13tr day of November 1906-. Witness J.B. Merritt. It is said by defendants that thi; was an election to proceed under thi Workers' Compensation for Acci dent Act but beyond the fact tha' the payment of 30s a week would br appropriated to payments computec under the Act, I see nothing t< identify the payment as being unde: the Act; compensation under the Employers' Liability Act might ir fact be assessed in the same way Section 7 of the Workers' Compen sation for Accidents Act is as follow:

In every case where the injur) j is caused by the negligence default j or wilful act of the employer the fo lowing provisions shall apply. 1. NoUiing in this Act shall affect the civil liability of the employer independently of this Act. 2. The Worker may at his optior either claim compensation under this Act. or take the, same proceedings as are open to him independently of this Act. Provided that the Employer shalJ not be liable to pay compensation both independently of and also under this Act.' The jury have found that the injury was caused by the negligence.pl the employer. The language of Section 7 is very different to that oi Section 16, which latter section it similar to the section in the English Act under which Oliver v. Nantilus Co., 2 k. B 1903 was decided, aho is the section under which Keith v. Union S.S. Co VI, G.L.R. was decided. Section 16 provides that where the plaintiff has remedies against two sep^rajfce persons,, hie may proceed against either at hit option, but not against both, and the cases referred to decide that preferring a claim against and receiving money from one of those per sons is a "proceeding" which ban proceeding against the other person ; liable. That is not this case. Here: then is only one party liable to tht| plaintiff: namely, .the defendents.? There is nothing to show that the plaintiff preferred a claim, or re ejeived money ' under any specified ] Act. He received money and gave a receipt generally on account of ant claim he might have against the de fondants, The Ocean Compam were only thd. intiermediia^ies be^ tween the plaintiff and defendants Even if the receipt had been mor< specific as to the Act under whicl the money was paid, it would no 1 have barred the plaintiff's remedy under the Employers' Liability Ad or at common law. It is one thin£

to say that the defendants shall not be liable to pay both independently bf, aud under the Act. It is quite a different- thing to say that the pteintij? nwy prPeeed against either of two persons, but not against both Probably the effect of Section 7 is to allow the.^ defendant credit for anything they may have paid under one Act, if they ultimately have to pay ynder fche other or at common law. But it is flefc negfigsary to go so far as that in this ease, inasmuch as there is nothing to show that the payment made, was made under any particular Act. Although an issue on the point was not- specifically put. the foreman of the jury has informed me that the payment of £7 10s to the plaintiff was taken into account when assessing the damages #jji4 #ie sftm was in addition to fcbie yaymtiiit mp-jf?- Judgment will therefore be ' entered f or plaintiff for the amount of the verdict with eostas agtjorfUng to scale." His Honor said' they WQul£ now settle regarding costs,. Mr Guinness said he presumed the usual costs would be allowed and also the .cost of conveying the jury to inspect the machinery. His Honor said the latter would be granted if counsel consented. . Mr ' Hannan consented. #h Mf ' H^nnan's application His Honor -stayed judgment; "for f our teen days in view of the possibility of defendants deciding to appeal. Mr Guinness' referred to the delay that would result in the event of an appeal owing to the fact that the rules provided that the appeal docu flMjnfe? m\M H p £ Wk MliJLfeF His p^nof t}l| hjs next sitting li'ere m Aprif tiiUß "preventing the Rearing before the Supreme Court till September. . His Honor said he° would deal with the documents if forwarded to him at Wellington. No difficulty should be experienced in citing a case for the app.eaj— |he judgment would almost be sufficient." At any rate if counsel set out the pleadings verdict and judgment, it would be sufficient. Mr Guinness said that he ft ad bgisn requested, as vice-presi-dent of the Law Seeiety to bring under His Honor's notice the neces sity for an amendment of the rules jo* tae District Court. Alterations

had been made in the scale of allowances to witnesses but no alteration had been made in the scale of charges. The case just decided by His Honor was, he thought, a case in .point.. AIR the legal expenses provided by the present scale was £3 12s 6d although counsel had been engaged three days in court. In the Magistrate's Court a much stiffeT fee would be allowed. He asked ii His Honor would recommend the Government to have the scale re ; vised on a basis somewhere between" the Supreme Court and Magistrate'? 1 Court scales.

His Honor: I don't think there will be any alteration for a year oj two.

Mr Guinness thought it might be tried. If the Law Society passed a scale and forwarded it to him woulo His Honor recommend it for adop tion.

His Honor: I would do anythinf I could. The Department might look with favor on a revised set of rules prepared by a judge.

Mr Guinness remarked that district, courts were supposed to have been in their last gasps for very many years.

His Honor: Do you think they ought to be abolished? Mr" Guinness : I certainly do not. His Honor : I think it can be made a more useful court.

Mr Guinness said that the case just decided showed tliat. His Honor said that it was nc trifling labor to go through the rule: of the court and consider them and draft fresh ones. Unless one waf specially requested to do so by the Government and had an assurance that his work would be appreciated one did not feel inclined to undertake that labor. If he could only get some intimation from the Government that a revised set of ruler was desirable it would be a great encouragement to set about it.

Mr Guinness said he thought the council of the Westland Law Society would unanimously agree to a recommendation in that direction. He had no doubt that they would consider it and come to a decision or it and the decision would be communicated to His Honor.

His Honor said he would do all he could.

The Court then rose