LEGAL RULING

New Zealand Herald, Volume LXXVIII, Issue 24000, 25 June 1941, Page 3

LEGAL RULING

CLAIMS FOR DEATH PRIOR ESTATE BENEFITS JUDGE'S COMMENT ON ACT Questions of law having an important bearing on certain claims for compensation for death by accident have beer, determined in a judgment given by Mr. Justice Ostler in the Supreme Court yesterday. The argument was a preliminary one to an action in which a widow and children •will claim compensation for the death of the husband in a motor accident. Dcoasi'd left a substantial estate, which lie bequeathed to his wife and children. The questions, put to His Honor were whether any capital or income received by the widow and children of the deceased was a "gain consequent upon the deceased's death" within the meaning of section 7 of the Law Kefonn Act, JD.'if). and whether evidence could he given at the trial of the acquisition of property under the will by the widow and children of the deceased in order to reduce the damages. His Honor said the correct interpretation of the section was a matter of great importance, for if its words were construed in their literal meaning the effect was largely to alter the basis upon which damages were assessable under the Deaths by Accident Compensation Act, 1908. It was unfortunate. His Honor thought, that the Legislature should not have been content when re-forming the law to amend it so as to bring it into conformity with the English law. Effect Not Realised His Honor said he doubted if the Legislature realised the full effect of the words it had used, but nevertheless the words used were so clear that they must be given effect to notwithstanding unfortunate results. Notwithstanding that the dependants by sharing in the estate of the deceased had become better off than they were in his lifetime the Legislature had provided that they might still bring their action, and that in assessing the damages, which were intended to he purely compensatory. the gain or profit- which the dependants had made out of the death of the deceased was not to be taken into account. No Wisdom Discerned "A dependant who has acquired no gain from the death," continued His Honor, "can still recover no more than his or her proved loss, whereas the dependant who lias made a gain by the death, however large that profit may be. may pocket it and still recover damages based on a'fiction that he or she has suffered loss which in fact has not been suffered. "1 can discern no wisdom in this socalled reform of the law, but _it is too clearly the intention of Parliament to leave in my mind any doubt as to its meaning. In mt opinion a dependant may not even be asked in crossexamination any question tending to prove that he or site is better off financially .by reason of the death upon which the action is founded, for only questions which are relevant and questions which affect-the credibility of a witness may be asked in cross-examina-tion." His Honor answered that any capital or income received by the widow or children of the deceased is a gain consequent upon the deceased's death within the meaning of (section 7 of the Law Reform Act and no evidence can be given at the trial of the acquisition of property under the will by the widow and children of the deceased in-order to reduce the damages. ...