A WIDOW’S CLAIM

New Zealand Times, Volume XXXIII, Issue 7847, 8 July 1911, Page 1

A WIDOW’S CLAIM

FOR DEATH OF HUSBAND WAS SHE A DEPENDENT? An- interestin'; legal point was discussed b\’ his Honor Mr Justice Sim iu an Arbitration Court judgment delivered by him yesterday. The question that his Honor was asked to decide concerned the rights of a wife separated from her husband under an agreement, to claim compensation as a dependent under the Workers* Compensation Act. By the agreement the husband bound himself to contribute towards the maintenance of his wife and two children at the rate of 15s per week. Por about six months thereafter the husband made weekly payments in terms 01 the agreement, but then he left the town where his wife lived and did not afterwards contribute maintenance.

Plaintiff iu tho ease was Flora Sherwood,, widow of George Sherwood, who was kilied ou or about March -Uii last oy an accident arising out oi and in the course of his on, pioviiieut with the _delendauts, ■ tire INvw Ztaiand Company, had. She was mamta to Saortioou on March atith, IBOx. ana they were separated ou jfeuruary lath, I'JuO. Ac tae nearing on June -Via, Mr T. J. O'itegan appeared lor pialudix, ami Mr l\ r . it. I). Adi lor the uefenaant. Hairing recited ilnse facts, h-s Honor 6 judgment xu-occeifs as Allowsihe pminiiti now claims to recover compensation under the workers’ Gompeasauun Acton behaii of herstuf and her chridien. Tne sum claimed is All?, being three times tne amount which Saerwdou would have paid to the plain dif under tne agreement for sepaiatioii if he had complied with the terms thereof. Tne claim is thus made on the basis that tne plaintiff and her children were partial dependents of the deceased. “ if they were only partial dependents it is clear, we 'think, that they uro not entitled 10 recover any compensation. In a ease where .only partial uejmnuents are reft too compensation under section 4 (bj of the Act is to he a sum equal to three times tne vame of the beueutg received by the dependents from ine deceased worker during the iweive .months inineciiateiy preieding flic accident Which caused his death, suuject to the limitation therein mentioned. Air U'Regain contended mat The expression “ benefits rece.vea" ought to be construed so as to include not only benefits actually received oy, mo depcJiuems, * out auto benefitb which they were-entitled to receive. We cannot accede to tnis contention. The expression, in our opinion, must be hem, to'mean oeucliis actually received by tne dependents," and cannot include any payments wlucu cugnt i>y law to have ueeii made, but which, in iaec, were not hmde to the dependents oy me deceased worker. Tuts, we itluua, is c-iear from the language used uy the ikgisia'iu'no, and is maue still clearer by a consideration of tne provisions contained iu the Act previously ,m force. Under that Act the compensation in the case oi partial dependency wojs to be a sum “ ueLetmined 10 no reasonable and proportionate to tne loss or damage s uttered oy tne said dependents." This- eet up a vague and unsatisiactory measure tor ass<ms.ug tompensaiiun, and , tne oojoct of me legislature iu changing the law appears to have been to huosutme a more c.ear and dalinite measure, so that the only point tc bo investigated would -bo tho Value o, tie assistance actuauy given by the deceased worker to mis dependents during the twelve montns preceding the accidtm which caused his death, if that investigation is to be extended "to benents whicn might, or ought to, have been re-, ceivcd by the dependants, then the cle-ine-nt of uncertainly and speculation, winch apparently tno Legislature sougnt to e.vcluac, is brought back again. “ If, therefore, me piaintaa' and her children can claim only as partial dnpen.dents their claim must tail. We are not satisfied, however,, that, as far at least as the plaint.it herself is concerned, tnere may not be a total dependency, there is a presumption that &n© was a total dependent on the earnings of her husband, and the question to be considered will bo whetuer, in tho circumstances, this presumption has been rebutted. This point was not argued at ihe hearing. Tire case will, therefore, be adjourned to the next eitting of the court in Wellington to give the parties an opportunity oi arguoig the question, and so that, if necessary, evidence may* be called to prove in what way the plaintiff and her children have been maintained since the agreement for separation was signed.”