COMPENSATION RIGHTS

New Zealand Herald, Volume LXXI, Issue 21934, 18 October 1934, Page 15

COMPENSATION RIGHTS

POWER TO CONTRACT OUT CASES OF HEART DISEASE AN AGREEMENT UPHELD The legal efficacy of an agreement between a Glen Massey mine shiftman and Wilton Collieries, Limited, intended to free the company from certain liability to compensation, has been upheld by Mr. Justice Ostler in a written judgment delivered in the Supreme Court yesterday. The question put lo His Honor by way of originating summons involved an interpretation of sub-section 2 of section 17 of the Workers' Compensation Act, which governs the conditions under which a worker may contract; out of his right to compensation. "This section has never come before the Court for interpretation," said His Honor, "and, consequently, I must interpret it without the assistance of authority in accordance with the principles applicable to the interpretation of statutes." Mr. Strang, of Hamilton, appeared for the plaintiff, John Robert Connew, of Glen Massey, and Mr. Richmond for Wilton Collieries, Limited. His Honor said that .when plaintiff was medically examined last December it was ifound that he had a definite lesion of the mitral valve of his heart, a form of heart disease that might be aggravated by work to the extent of causing incapacity. On July 10 plaintiff tigum examined by 13r. Grower, who confirmed the fact of disease of the heart, but certified that it would be safe to employ plaintiff at his former job. He advised, however, that the company insuring him "should be freed from all liability" (to pay compensation) "with reference to the heart condition." A Written Agreement Plaintiff was anxious to return to work and the company was quite ready to re-employ him, but, naturally, did not wish, to be liable for future incapacity or death due to his heart disease. The parties had accordingly entered into a written agreement designed to free the company from liability to compensation for any incapacity or death arising from heart disease. The question asked the Court was whether upon the true interpretation of sub-section 2 of section 17 this agreement would be effectual in law to exempt the company. His Honor said that ever since the decision of the House of Lords in Clover Clayton and Company v. Hughes in 1910 it had been established law that if a worker suffering from such disease died or was incapacitated while at work, if it could be shown that the death or injury was sustained as the result of a strain or effort, however slight that strain or effort might have been, and even though it was much more slight than the strains or efforts to which ho had been accustomed to subject himself, or which he had been called on to undergoi in the course of his work, then the death or incapacity was an accident arising qut of and in the course of his employment, and the employer was liable to pay compensation. Employers' Great Bisk In the case referred to a worker suffering ifroni advanced aneurism of the aorta was merely engaged in tightening a nut with a spanner when a rupture of tfce aneurism occurred, causing death. It would, therefore, be easily understood that an employer ran very great risks in employing a worker suffering from disease of the heart which was likely to be accelerated or aggravated by work, and would be, therefore, very unwilling to run that risk by employing such a man. The right to contract out of the Act was first given in New Zealand in 1908. The clauses must be deemed to be remedial and receive such a fair, large and liberal interpretation as would best attain their object. After interpreting sub-section 1 of section 17, His Honor said there was no difficulty in interpreting subjection 2 in the same way. The words "due to the said disease" meant materially due or due as a matter of substance. . ' "The agreement goes beyond the exact words of the sub-section," said His Honor, "inasmuch as it adds the word 'aggravation.' It provides for nonliability if plaintiff subsequently suffers incapacity or death which is due to any aggravation of his heart disease or of any complication of any kind affecting his cardio vascular system. In my opinior, such an agreement is within the powers granted by section 17 (2). Object of Agreement "The object of the parties was to exclude the liability of the employer to pay compensation for any subsequent mishap' to the plaintiff which is due as a matter of substance to the disease of his heart, notwithstanding that it may occur while at work and be shown to be due to the strain he was undergoing at the time of . the accident, but to leave the liability of defendant company untouched in all cases of incapacity or death which are not due in any material respect; to the state of his heart. The agreement is, I think, well within the ambit, of the sub-section, and I accordingly answer the question by declaring that the agreement is effectual in law to exempt defendant company from liability according to its tenor. Defendant company will pay the plaintiff's costs of the originating summons, which I fix at £6 6s and disbursements."