UNIQUE DECISION.

Hawera Star, Volume XLVIII, 9 March 1929, Page 8

UNIQUE DECISION.

INTRICATE LAW PROBLEM. HAW ERA D.O.A. v. RICHTER. JUDGE DISMISSES MOTION

U Jiat appears to be an unique decision at law so far a,s England, New Zealand or Australia are concerned is given in the reserved judgment just announced by Mr Justice Ostler in 'proceedings instituted by the Deputy Official Assignee at Hawera (Mr R.. S. Sage) to have declared as part of a bankrupt estate a sum paid to' the bankrupt in settlement of a. claim for compensation in respect of the death ot' his wife', which occurred to the filing of the petition in bankruptcy, the D.O.A. claiming that, at the time of the bankruptcy, the statutory right given to the petitioner under the Deaths by Accident Compensation Act should have passed ns, part of tho bankrupt's property to the Official! Assignee. The effect of the reserved judgment is to negative the contention of the D.0.A., whose motion, is dismissed, costs lieing allowed against the bankrupt’s estate, which does not include . the amount in dispute.

As was fully reported in the “Hawera Star” at the time' the motion was heard by Mr Justice Ostler in the Supremo Court at Welllington on December 13 Mr M. Myers, K.C., with him Mr Pitzherbert, of Wellington, instructed by Mr T. A. Kinmont. of

Hawera, appeared for the' D.O.A. in support of tho motion, which was opposed on bal;in If of the person concerned Mr R. A. Richter, formerly of Mokoin, by Mr A. K. North, of Hawera. FACTS OUTLINED.

“This is a motion by the Deputy Official AjSisi<sixe>© a.l> Hawera of ±lio estate of Ronai'd Alwyn Richter for an order that a sum of £950 paid into court by Dolgety and Co., Ltd., in an action between Richter and the company forms part of Richter’s estate' in bankruptcy,” says Mr Justice Ostler in reviewing the case. ‘The facts iyxm which the motion is founded are as follow: On February 24. 1928, Richter’s wife was accidentally killed bv a motor-ear driven by an employee of Dalgety and Co. Richter was a, farmer with two young children, and at that time lie was the owner of the equity of redemption of a. farm at Mokoia upon which he owed a targe sum of money secured by mortgage .to the vendor of the farm. ‘‘Richter was adjudicated a bank-

rupt on his own petition on April 19, 1928, and on May 24, 1928, lie obtained his discharge. After lie had obtained his discharge he commenced an action against Daigeity and Co. under the Deaths bv Compensation Act, 1908, on behalf of himself and his; two children.

Dalgety maid £950 into court, and this sum was accepted in full settlement of all claims. An application was then made to the court to apportion this sum between Richter and the; children, and the court ordered the whole sum to be paid to Richter. “'Phe Deputy Official 1 Assignee now moves for an order that the whole of this isumi be paid to him as forming part of tho bankrupt’s estate. Tt is claimed that at the time of the bankruptcy the statutory right given to Richter bv the Deaths by Accident Compensation Act was a chose in action and also a. ‘valuable thing’ within the meaning of the term ‘property’ ns used' in section 91 of the 1 Bankruptcy Act. 1908. and therefore 1 they passed as part of the bankrupt’s property to the Official Assignee. SECTION EXAMINED.

“In spite, of the wide words used in tho definition of property, however, it is well settled that it is _ not all choses in action or valuable things vested in a bankrupt at the time of bis bank-

ruptcy which pass to the Offieia'l Assignee. R ights to kuo for a tort which is merely personal and which do not af-

feet the bankrupt’s estate do not pass. “The well-known passage from the Judgment of Park B. in Beckham v. Drake (2 H.L.C. at 627) miny be cited as a statement of the principle upon which it is determined whether a. right of action passes to the bankrupt’s assignee. ‘‘The learned judge-there says: ‘What then is the proper construction of this section of the Act?’ (that is of the Bankruptcy Act). ‘The proper and reasonable construction appears to mo to be that Ihc statute transfers not alf rights of action which would pass to executors (for rights incapable of being converted into money such as the next presentation to a void benefice pass to thorn'), but all such as would ho assets in their hands for the payment of debts, and no others, all of which

could he turned to profit, for such rights of action are personal estate. Of

such the executor is assignee at kiw, and the nature of the office and the duty of a bankrupt’s assignee requires that lie should have therm also. But rights of action for touts which would die with the testator according to the rule, actio personaJis nioritur cum persona, and afi actions of contract concerning the person only would! not pass. Of suc-h the executor is not the assignee at law and whatever may be tlvc reason of tlie law which prohibits hi from being so seems equally to appl'y to a bankrupt’s assignee.’ ’ CANNOT BE CONTINUED.

“Tne question for decision, therefore, is whether the statutory right given by the Deaths by Accident Compensation Act, 1908. is a right of action which survives and passes at law to the executor on the death of the person in whom it is vested. This question seems never to have been decided either in England or in New Zealand or in Australia. But it has been decided in Canada. Unfortunately the. report is not available, and the only reference available is in 30 Eng. and Emp. Digest, p. 142, where the effect of the case of McHugh v. Grand Trunk Railway Co. (1901), 21 C.L.T., .581, purports to be reported. ‘•The case decides that ‘upon the death of the beneficiary on whose behalf an administrator is bringing an action under the Fatal Accidents Act, 1897, the action comes to an end. It cannot be continued for the benefit of the beneficiary’s estate, nor cam a new action be brought by the beneficiary’s personal representative. ’ “In my opinion this case was correctly decided. Before the enactment of Lord Campbell’s Act in England (9 and 10 Viet., C. 93) the common law was that- the right of action for an injury to the person died with the person. It was to remedy the hard state of the law that Lord Campbell’s Act was passed, the provisions of which have been adopted in our Deaths by Accident Compensation Act, 1908. The provisions of the Act are so well known that it is unnecessary to quote them. The Act may he considered as providing a statutory extension to the right of action which otherwise would have died with the person in whom it existed. It was extended only to a limited extent, viz., for the benefit of the wife, husband, parent and child of the person.

PURELY PERSONAL RIGHT. “in my opinion the Act cannot be construed as conferring on the class of persons benefited a species of property upon which their death would pass by law to their executor. It was intended to give to the classes of persons named a personal right which otherwise they would not have had, and if they died before that personal right had been enforced the right to enforce it would die with them. In my opinion that was the intention and is the effect of the Act. It extended a right of action for tort which otherwise would have died for the benefit of certain defined persons, but did not create a new right of action in or for the benefit of those persons which survived them and passed to their executors.

; “For these reasons I think the case ■ of McHugh v. Grand Trunk Railway - was rightly decided, and that the i right of the bankrupt given by the , Death by Accident Compensation Act, 1908, in respect of the death of his ■ wife was not a right which would have ; passed to liis executor on his death. “It was purely a personal right which dies with the person. That being the case, the right was not of that class of rights which would pass to the bankrupt’s assignee mion his bankruptcy. “It- Is true that a- claim under the Deaths by Accident Compensation Act, j 190 S, con be based only upon pecuniary ' loss. Unless the person for whose I benefit the action is brought can prove I present or prospective pecuniary loss by reason of the death in respect of which he sues he can recover nothing. | But the loss of personal comfortcaused by the loss of tho services of a wife is sufficient evidence of loss I of pecuniary benefit: See Pym v. Great Northern Railway Company (2B and S, 759: 4 B and S, 396). In ’this case that is all the bankrupt could have proved. ‘‘But even assuming that the person to whom the statute has given a right .of action can prove present pecuniary loss his cause of action is the same as the deceased person would have had at any rate to this extent, that if the deceased had before his death accepted any compensation in satisfaction of his claim no claim can he brought by any such person. See Reed v. Great Eastern Rail wav Company (L.R. 3, Q.B. 555). “This consideration seems to show that the intention of the statute was merely to abrogate the common law rule to the extent of keeping alive for the benefit of individuals of certain limited classes a cause of action which otherwise would have died with the deceased.

HOUSE OF LORDS RULING

“My attention has been drawn to the case of United Collieries Utd. v. Simpson (1909), A.C. 383, in which the 1 House of Lords decided that the right |of a dependent of a deceased workman to make a claim under the Workmen's Compensation Act, 1906, passes I to the executor of the sole dependent ) who has died without having made a claim. At first sight this would seem in point, but upon a full consideration of the matter I am of opinion that it has no analogy, to the question considered in this judgment. “Lord Campbell’s Act was passed for the purpose of abrogating to a certain extent the maxim actio personalis moritur cum persona. The Workers’ Compensation Act was passed to provide for the dependents of a workman who was killed at his work, irrespective of whether there was any negligence or wrongful act causing his death. It created a statutory debt of a fixed sum payable by the employer to the dependents of the workman who was killed in the course of his employment. This debt was made payable by the statute in all cases of the death of a workman in the course of his employment, and the negligence or wrongful .act of the employer or of a fellow workman was not an element to he taken into eonsidera- i tion. j

“The decision of the House of Lords is based solely on the ground that the Workmen’s Compensation Court created a statutory ebbt by the 'employer to the dependents of a workman killed m the course of his employment. It

was _ expressly mentioned that the maxim actio personalis moritur cum persona had no application.

EFFECT IN NEW ZEALAND

“In New Zealand the effect of that decision lias been enacted as part of our statute law in Section 56 of the Workers’ Compensation Act, 1922. It is especially enacted that the right of action given by the Act to the dependent of a deceased workman shall survive the dependent and may be enforced by his representative. But it is also especially provided by Subsection 2 of that section that the moneys so recovered by the representative of a deceased dependent shall not be available as assets for the payment of his debts and liabilities, so that even though cause of action survives the dependent it would not- pass to the dependent’s assignee on his bankruptcy. “In the Deaths by Accident Compensation Act there is no statutory provision that the cause of action shall survive the death of the persons to whom it is given. The maxim expressio unius est exchisio alterius may be applied. “In mv opinion, for the reasons stated, tile right of action which the bankrupt had in respect of his wife’s death did not pass to his assignee upon Ills bankruptcy, and therefore this motion must he dismissed with £lO 10s costs, to he paid out of the bankrupt’s estate.”