COMPENSATION RIGHTS

New Zealand Herald, Volume LXXI, Issue 21932, 16 October 1934, Page 13

COMPENSATION RIGHTS

POWER TO CONTRACT OUT AN INTERPRETATION SOUGHT IMPORTANT ISSUES RAISED A question of much importance on the construction of the Workers' Compensation Act was raised in the Supreme Court before Mr. Justice Ostler yesterday by way of originating summons. The question, which affects the right to contract out from compensation, has not previously been argued before a Court. The purpose of tho action was to obtain an interpretation of sub-section 2 of 'section 17 of the Workers' Compensation Act, which reads as follows: "Notwithstanding anything to the contrary in this Act, if any worker suffers from, or has previously suffered from, any disease or personal injury, it shall be lawful for him to agree in writing with any employer or intended employer that no compensation shall ba payable by that employer in respect of the incapacity or death of the worker if his incapacity or death is duo to tho said disease or injury, or to any recurrence' or repetition thereof." Purpose ol Agreement The form of the action was to 'test the validity of an agreement made between Wilton Collieries, Limited (Mr. Richmond), and one of its employees, John Robert Connew, of Glen Massey, shiftman (Mr. Strang). Tho purpose of the agreement was to exempt the company from certain liability for compensation to the plaintiff Connew or his dependants. It appeared that Connew, who had been employed by Wilton Collieries for some three years prior to October 5, 1933, met on that data with an accident in the course of his work. It was claimed that he had strained his heart while lifting rails, and the company denied liability on the ground that the required notice of the accident had not been given. It was admitted by both ! parties that plaintiff was suffering from a form of heart disease that might be aggravated by work to the extent of causing incapacity. The question for the Court ' \yas whether the words in the sub-section dealing with recurrence or repetition of a disease were wide enough to cover incapacity due to the combined effect of some strain at. work upon a heart already weakened by disease. Intention of Legislature Mr. Strang said that Connew was 53 years of age and had a wife and family dependent upon him. He was willing and anxious to work and the employers were willing and anxious to employ him. His employment would be resumed as soon-as His Honor saw fit to interpret the agreement as serving tho purpose it was intended to serve. In his present stato of health it was quite reasonable that Connew should work; but at the sanio time there was risk that incapacity might result from his employment. The Act, generally speaking, did not allow qf compensation for disease alone, and it must follow that it was tho intention of the Legislature the sub-section quoted to allow the workman to contract out of his right to compensation, where, as in the case of plaintiff, there was a probability that his existing disease might render him more liable to incapacity as the result of some strain at work. Mr. Richmond said the matter was very important, and had been engaging for "a long time the attention of those who had to do with workers' compensation. In the progress of decided cases, a point had now been reached at which if any amount of effort at work, coupled with existing disease, caused incapacity, that was an accident. Where a man suffered from heart disease to such an extent that he might at any time die by reason of even a slight effort, yet if that effort was made while at work, tho incapacity which resulted was treated as due to accident. Although a man's heart was in such a condition that, even moving a lever or shifting a light spanner resulted in his death, still his dependants wore entitled to full compensation as if the death was due entirely to his work and not to disease. Insuring Against Disease The result of this position was that employers were really asked to insure against disease rather than against jfecident. Men desirous of obtaining work could not do so because the Act prohibited contracting out of its benefits except to the limited extent of the sub-section quoted. Unless, therefore, the Court could say that "recurrence" or "repetition" of an injury or disease were terms wide enough to include the aggravation of a pre-exist-ing injury or disease to'the point of incapacity, men who had pre-existing weaknesses in the form of disease or injury could not bo employed without the employer taking on himself a risk far greater than the normal. Counsel quoted the remarkable case of a man who, in the opinion of medical witnesses on both sides, might have died at any moment in doing such ordinary acts as getting out of bed or turning a tap. He actually died when starting to use a light shovel, and his widow received £IOOO compensation. There was also the case of another man suffering from heart disease, who died while reaching up to adjust a hook. Tho Court of Appeal held that the cause of death was arising out of, or in the course of, his employment. His Honor, in reserving his decision, said that the matter was of such iriiportance that ho regretted that it could not have been argued before the Full Court, but he assumed that matters of expense, and possibly of time, made : t essential that he should give his own decision.