WORKERS COMPENSATION FOR ACCIDENTS

Otago Daily Times, Issue 14359, 31 October 1908, Page 4

WORKERS COMPENSATION FOR ACCIDENTS

"A GTiKAT HUMANITARIAN scheme." TIIE NEW MEASURE EXPLAINED. By P. .1. On the Ist of January next "The Workers' Compensation for "Accidents Aft, 1908, will become law, atul, m view of its great practical coisoom to a largo Onss <i! readers, an epitome of ,iis provisions cannot fail to be of intwrl. at t lis prose lit juncture. Tho object- of this article in lo explain in tonus its dear and non-tcchuiral as the nuturo of tlic subjcct will allow, the scope and effect of the now jaw. Tim act may ojrlainly, without exaggeration, Iso termed a. great. humanitarian sohenw, but, in order adequately to appreciate the fact, it is necc&nry firei to glance briefly at the common Jaw as it. affected the groat question of compilation lo workeis for injury by accident, and to cantwsl I lie mcreilcsa rigour of tho common, law with the liberal ami humane provisions of the statute which the Parliam<?iit. of New Zealand has just enacted. A GLANCE AT HISTORY, It is hardly an exaggeration to say that the common Jaw barely admitted that the worker who ins injured by accident in the course of 'his employment "had any right to redress. In order to rralise this fact, it is necessary to remember that it. wan (and is yot to a- large extent) a maxim of tho

common law lhat: "A. man's right of action died with Jiim." In so far as it concorned the dependants of workers who hail boon killed tho effect of this maxi.m was singularly anomalous and harsh. If a man were merely injured in the course of his employment, or if Jio wc.ro injured in circumstances where the relation of master and servant did not. exist, Ire might have maintained an action, for damages against any person w-ho«e nee-l-ifi-ence caused tlio injury. Hut if Ik- wow? killed, liis dependants could recover absolutely nothing. The gross injustice of this state of the law

vas loss iKiticeable in England ill her pre-ndust-rial days. With llie development cf machinery andtlve vast expansion of industry, lowever, accidents became increasingly fre-

qiiont, anil Iho wrongs of I,ho widow' ami orphan bseanw tao flagrant to continue, thcnjjh it must be adnwtcd that, justiro came with tartly n.ixl rclue'n-nt steps. In the year 1845 the Fatal Accidents Act became law. This statute is generally referred to as LORD CAMPBELL'S ACT, from the name of its author, and the NewZealand Deaths by Accidents Compjircation Aot, passcil .as recently as 1810, is a transcript of th-a measure. It is rather a

remarkable fact, by tho way, that, the commonlaw rulo, that, a man's right of action died with him, was in full operation in this country tip to 23 years ago. Tho Death by Accidents Compensation Act applies whether or not. the -relation of master and servant existed between the deceased and the person whoso -ncgliganoo caused tho injury, and it enables the representatives of a (vCCMsed poivxjn to on actios l . for the recovery of compensation in all cases wh-oro tlie <boMojd himself coukl have sued bad dcatli not resulted from tho injury. This principle has of course been embodied in tho Employers' Liability and AY or tars' CompenisatiOn for Accidents Aot. But in reality the passage of ike Deaths by Accidents Compensation Act did littlo to advance tho position, of tho worker. Though the -representatives of a- deceased worker might now maintain an action, tbey haid stijl to meet all other common

law defences, as for example, the defeneo of contributory nctrlig-enoo. The defeneo which -really v.'ork-sd cruel injustice, and practically deprived tho worker ofallchaneo of redress, however, was . . THE RULE OF COMMON EMPLOYMENT. It is a maxim of tho common law that a man is liable for the negligent ac-te of his servant if they cause injury and have teen committal in ths course of tho employment and within the scope of the servant's authority, A man cannot CEoaiX) liability merely becau&s ho lias put another in his place, which other doca acts that

would be actionable if <]cn« by tho principal himself. To this maxim, however, the rule of coin-man employment furnishes an

important exception, andi one which has be®n_ prod'Mtivo 'of untold piafdship to working men. Briefly, the rule of common employment means that "where the worker whose nagiligence causc-d tho injury ami the work-3t injured arc engaged

in or -in connection with the panic employment and fc.r tho samo employer, tho worker mju.ro/ has no claim as against tho employer." T-ho practical effect of tho rule

is -that in all cases whore tiro relation of employer ami worker exists, if one worker

is injured in oonoequonoe of the .negligence of a fellow worker, the maxim that a man

is liable for injury caused by the negligent neb of his servant does not- apply! The rulo is based on the theory that when the worker entered into the contract of sfivico with the employer, lie must bo preeu-mcd

to hava had in contemplation the risk of

injury through the liejligemoo of a fellow servant, and to have .weed to incur the sarno! Tho rule is an unfortunate example of what Den'-iham ridiculed as "judge-mado law." It was unknown to the la-w of England until 1837, in which year it was applied for the first time in the case of

Priestley v. Fcwier, though it was not

finally developed l tmlil 1891, when tho case of Johnson v. Lindsay was decided by tho Houso of Lord;. Although it . has repeatedly been applied by the courts, it is remarkable i.hat r.o jurist- of standing attempts to defend it. Mr Ruegg, in hia work on "Emplcycre' Liability," condemns tho rulo unsparingly, amd we not-ico that Mr J. W. Salmond. who raw fills tho position of law draftsman to the New Zealand Government, in the course of a,n able and scholarly trcatiso ho lias receaiil-y published en " Torts," is equally emphatiie in hi.> condemnation' of the rule. Once it liiis become engrafted on the common' law, however, nothing short of legislation could rcliiovo it, and, like all things else indefensible, it has bean, "an unowisaionablo time in dying." The first statutory curtailment of the role of ootnmcu employment in England was embodied, in tho EMPLOYERS' LIABILITY ACT, 1880, of which tho Now Zealand act of 1882 is nn exact reproduction. That statute, provided that in all ca?cs where injury had been caused through any defcct in riio ways, machinery, or plant of an employer, or through the negligcncc of a fellowservant, the defence of common employment should not apply. The statute was hedged round with numwotis and vexatious qualifications and conditions, however, which were not- redressed until the enactment of tho amending nets of 1891-2, devised by tho Hon. W. P. Reeves. In the y-Kir 1900, however, was passed tho

WORKERS' COMPENSATION FOR ACCIDENTS ACT. This act, modelled on the English act of 1897, completely altered the law on the subject- of employers' liability and workers' compensation, inasmuch as workers who were injured and the dependants of those who wore killed in Ihe course of their employment were made eligible to receive compensation whether the employer or his agents or servants had been guilty of negligence or not, and the dofenco of contributory negligence did not exonerate Ihe employer, unless it amounted to serious and wilful miscojiduct on the part of the worker. The statute in reality ohligcs the employer to indemnify the worker against injury by accident in tho course of his employment. Since its enactment, a eeries of decisions has clarifiod and developed the scope of its provisions, and several amending aels have been passed to remedy defects revealed by successive eases. The measure now before us may' not inaptly lie termed a codification of tho law on the subject of workers' compensation. The following may be termed tho gist of the new statute: —

1. Tha Employers' Liability Acts, "The Workers Compensation for Accidents Act, 1900.'' and its several amendments, are repealed, and practically the whole of the latter re-enacted. 2. 'L'lie meaning of "worker" is oxtended to include perrons engaged in clerical employment. 3. The maximum amounts recoverable in ca.se of death or injury increased to £500, and a sum not exceeding £20 is allowed in addition for medical or surgical expenses, including fiwfc aid. 4. Compensation is recoverable for death or incapacity resulting from certain "industrial diseases," and power is reserved to add 1o the number of thesei from time to lime by Ordcr-in-Council. 5. Unless a worker's averag; earnings are below 30s, his weekly payment during incapacity shall not bo Jess than £1. 6. In ihe case of workers under l-he age of 21 years, the'average weekly earnings shall l:e deemed to have been not Jess than £2, and compensation shall be assessed on tiie basis of that; sum. T. The abatement of compensation propir.'fioiiale to an .injured or deceased worker's e?lf-insiiranee itt abolished, and in future the worker will be entitled to the full benefit of the compensation allowed by the statute, and he shall have his own insurance in addition

8. The second schedule to the net prescribes the niiirmnts of compensation payable for certain injuries therein enumerated.

9, The ruin of common employment is abolished. In other words, the right lo sue at common law will, as heretofore, exist com.nrrcnlly with the statutory remedy, bul the defence of common employment will no longer l>e available In order, however, to realise fully the benefits conferred by (he new act, it is necessary lo submit the foregoing to a MOKE DETAILED EXAMINATION. l'irst lot us examine the definition' of "worker." The meaning of that term under the act of 1900, as it has been expounded lii' judicial decisions, is certainly anomalous ior example, it Ins been docided that a station manager, part of whose duly it was lo do work usually done bv manual labourers, was a worker. l!y another decision it was settled that the master of a vessel is not a worker, and hence is outside (lie net. Vnder the new act. seamen nro, as heretofore, within the scheme of compensation, but. "seaman" is now defined as "any worker employed os a master. officer, seaman, apprentice, or in any other capacity whatever on Wrd a ship by llie owner or charterer (hereof." lint although the word " worker" now covers, as we have seen, persons engaged in clerical employment, the term expressly excludes "any person whose average weekly earnings . . . exceed £5." It will thus be seen thai, while the meaning of the term "worker" has been extended to include a large number heretofore excluded, it has nevertheless been made subject to a rational and necessary limitation. The master of a vessel, in common with the manager of a station, is within the act, lmt everyone is outside it wlicac Salary exceeds £5 ner week. Under the act of 1900 the maximum amounts recoverable were £300 in the case of injury and £400 in the case of death. The whole sum of £300 could not be recovered, however, unless the injured worker received it in weekly payments. If ho were paid a Jump sum, even in the case of total incapacity, he was paid the cash valui) of the difference between £300 and the sum total received in weekly payments as from the date of (he accident until the award or settlement. This feature of the act of 1000 is continued by tho new statute; but. inasmuch as the second schedule (specifically fixes the amount of compensation for certain injuries therein set nut, it is submitted—nlthoush there is no direct slatenjent lo that effect in the act —that the payments within that schedule are subject, to no deduction on account of cash payment. The provision for reasonable medical expenses in addition to compensation will bo appreciated by both workers and medical men. At present the injured man is solely rcf;iQßsiblo for medical expenses, and in the caso of trivial injuries, especially when ho is obliged by the insurers to produce a medical certificate before receiving a payment, the medical expenses go far to nullify the benefits of the act. Thus we see that the maximum compensation is not merely increased, but is subject to important and beneficial oxtensions—the cash payment for injuries within tho second sehcdulo and Ihc provision for medical expenses. This, however, is by no means all, as further examination will show. Section 14 of the now act reads as follows: —

In assessing compensation, whether undor this act or independently hereof, there shall be no abatement of ihc amount for which "the employer or his insurer is liable by reason of tlfo fact that, in consequence of the accident in respect of which the claim has arisen, money has accrued duo to the claimant in respect of any life or accident insurance policy effected by himself or by any person other than the employer.

This is a very important section, but it requires some explanation. Tho theory nf the oominon law is that compensation for injury by accident is purely compensatory for financial loss) no allowanco for grief or oven funeral expenses being inasmuch as grief and funeral expenses

would havo conic in any event, even had there been no accident. lience, in comput-

ing compensation, any monetary benefit accruing from the injury or death must bo allowed for, and jieordingly if tho life of the deceased worker wore insured tho

benefits of the insurance arc considered and a proportionate deduction made. This principle of the common law has not teen

excluded by cither (he Employers' Liability Acts or the Workers' Compensation

for Accidents Act of 1900, And it has been a-pplied in two New Zealand cases under liho latter statute. ■ Tho section quoted makes it clear that under the new act the injured worker or the dependent, as tho case may be, shall have liis insurance in addition to the benefits conferred by the statute. It is important to note, moreover, that, tho ecetion is equally applicable to common law actions, for it states

distinctly that thtk'c shall lie no abate-

ment, "whether under this act or independently -hereof." Section 14' thus abolishes absolutely a creel and indefen-

siblo anomaly by removing a substantial discouragement to self-insurance. Henceforth a man who insures himself will have tho satisfaction o£ knowing that li© will net. thereby prejudice the position either of himself or of his dependents in the matter

of compensation for injury by accident. FURTHER BENEFITS TO WORKERS.

Inasmuch as compensation under the act of 1200 is based on tho worker's earnings, considerable hardship has been occasioned to apprentices and youthful -workers generally. Necessarily • .the&j ■■■receive email wages, and hence, no matter how 6evere the injury, their payments have been trifling and' inadequate; This hardship has been materially" modified under the statute wo are now 'considering, section 9 of whicli provided that' in evei'y case of injury to a worker under 2l'liis wages shall fen- tho purposes of tho. act. bo deemed to have been not leg? tljan, £2 per week.

It is now worih svhilo to examine the method of arriving at a. claimant's average weekly earnings. for. tho .purposes of the act. Section 6 -provides that- "average weekly earnings" means wages received by the worker during tho 'twelve months immediately preceding tho 'accident, if ho has been so long 1 employed, add, if not, then for any lew period' during which ho has been employed by "the same employer. It scenis clear from this that broken timo is not to bo reckoned in computing earnings, and, as there is no provision. to the contrary, it would appear to follow that overtimo earnings are to be included in the computation. If the service has been too short to admit of computation by tho foregoing method, the earnings are to be estimated to bo what can be earned by a worker in tho same grade for tho same employer, and in tho same district. Section 7 continues the provisions of section 3 of t.hc amending act of 1904 in respect of casual workers employed as stevedores, lumpers, or wharf labourers.. Thus: —

The workers average, weekly earnings shall hp doomed \o b.Q not less than a full working week's .earnings at tho ordinary (but not overtimo) rate of pay for the work at which he was .employed at tho lime of the aoGident,--notwithstanding that he may not have actually worked or the employment may not- have actually continued for tho full week, and the compensation shall bo computed and assessed accordingly; but in no case shall the weekly payment bo less than £1.

" INDUSTRIAL DISEASES." But perhaps the most radical change in tho law has yet to be explained. Wc allude to tho provisions of section 10, under which-thebenefite of the act are extended to persons "who have in the'course of their employment become infoct'tfd with certain "industrial diseases." The "diseases to which "the" section, relates are anthrax, as well as lead,parsonic, mercury, and phosphorous poisoning, and tho dreaded : form of phthisis popularly known as " miners' complaint." Power is reserved to the Governor to add to this list by flrder-iu-Oouneil <]u!v published in the Gazette. We are prepared to hear these new provisions condemned as extreme, but it is well to remember that similar provisions have been in force in .England since 1906 —in fact, the extended meaning given lo the word "accident," In- successive decisions under

the act. of 1897 has made the inclusion of certain diseases inevitable, as a brief resume of the facts will show. The following easee have been decided under the English act.:--

1. A-worker ruptured- his stomach while lifting a. weighl. ami died. At the time he wtw suffering from disease of the coatings of the stomach, and he would not have suffered injury but- for the disease. He was held to have died from accident.

2. A worker while handling wool contracted anthrax, and died. The bacillus of the disease hu-.l entered the body by coil' tact with the eye. Held that he had died from accident.

3. While at work a stevedore was seized with an epileptio (if, and, falling down the hold of the ship he was assisting to load, was injured. Hold f'wt ]w had been injured by accident".

1. A worker iii, il'o conf.'o of his employment fcccame gradually infccled with lead poison, from which lie (lied. Held that 'lie had not dicdjtoui accident.

It has thus become settled that an injury is not loss an injury under tin- act. merely because it. has been induced by the diseased condition of (lie worker. - iiul Hid last-

mentioned instance shows that (hero must bo a definite point of time in tho eoureo of the work lo which some appreeiabln

ujiiry cap he traced. 11 was because of he case last mentioned that legislation wag lassod by (he Imperial l'arliament cover-

ing industrial diseases, inasmuch as it seemed anomalous (hat the contact, of

anthrax bacilli which produced death should lx> held an injury by Accident, while Ilia gradual absorption of load poison into (ho system was not. The inclusion of disease?, as a matter of fact, has Ixhui forced on by inexorable; logic. It will be noticed that l)v wet ion 10 oT the act under review both anthrax and load poisoning aro included. In order to be within tho section, a worker must have become incapacitated or have died within 12 montta from tho lime Ire ceased (o bo omnloyc.< by the respondent. If the disease had bee#, (ontracfod gradually in tiic service scwrtti o>" employers they are all liable, ami the payment of compensation! shall be apportioned lx'twc.Mi them, according to the time the claimant was employed bv each. It. is impossible (o sec how lit? number of diseases can bo •limhod to these mentioned in tho section. and. notwithstanding llie Minister's avowed desire to restrict tl(3 sphere of legal controversy, t.hia now provision will probably give rise lo < onsiderablo litigation. It will dotd.'tl'C-s involve also an incrraso in inesunuico premiums, at any ralo in tho quartz mining districts. SIIII'PINOr ACCIDENTS. Reel-ion 2 deals with accidents cn board Now Zealand ships. It. has already keen settled that a teaman, .is within tho act, who is injured on hoard u. New Zealand fhip, even beyond territorial waters. This section, therefore, is rally declaratory of tho existinj; law; but it clearly extends the liability, covering accidents on- board iN'w Zealand ships wherever they mar l>o when the accident .occurred, even -ill the territorial: waters of another country. " New Zealand ship" meatus not anlv a ship registered tinder the Shipping and Seamen Act, but any ship, vessel, beat, or other craft owned or chartered in Now Zealand by any person or body corporate or by the Crown. lb has been' settled by casas both in England amd in tliis country that the claim of the WIFE OR OTHER DEPENDANT of a worker is separate and distinct from his claim under tho art. Hence where a workc-r who ha 3 been injured by accident settle,l his claim by agreement with bis employer, but. subsequently died through a recrudescence of the injury, his agreement was held to bo no bar to a claim by his dependants who in sneii caso are entitled to receive tho difference between the amount actually paid tho deceased and the maximum amount'allowable tiiKlor the act. This is what is embodied in section 48 of tho new act, though perhaps the section goes somewhat further than tho decided casss, inasmuch as it provides that a judgment recovered by a deceased worker in his lifetime shall be no bar to an action by his dependants. When tho act comes into opera tion, two coureea may bo taken by a worker or his dependants—a claim may be made under •the act, or, if thought fit, a claim mr;' be made at COMMON LAW, i:i which term wc inehulo "The Deaths by Accidcnls Compensation Act, 1800;" for, as wo ha.vo seen, the remedy at common law will exist concurrently with tho remedy under the new act. It must bo remembered, however, that the act expressly amends the common law in two important respects. Wc have already sesn that see.iion 14, -which, preserves insurance moneys without abatement of compensation,, is applicable to cases 'brought independently of the act. By far the meat important, beneficent-, and far-reaching 1 alteration, however, is contained in section 62, by which' tho defence, ; COMMON EMPLOYMENT, . IS ABOLISHED.

Wo havo shown how this pernicious defence has inflicted gross injustice on working men amd on their dependants.. I'roni and after tho New Yca<r tho rule will be a thing of the past in ,Ncw Zealand. Wo beliovo it is a. fact that this is the first country in tho English-speaking world to cut away altogether this iniquitous obstado to the claim, of a worker to redress a.t common law, Section 62, hotvever, ex-

pressly limits t.lio amount recoverable for injury only to £300, but in the case of injury causing death the claim, as heretofore, is unrestricted as to amount.' In tho ovent of redress being sought at comtfiea ,law, of course, all the other common law d-efcnco may be available. For example, an action may still bo' defeated by the plea of contributory negligence. But it will no longer Imj po=siblo to defeat a worker's right by proving that he was injured by the negiige'neo cf a fellow-worker. amendment, alono is soinelhins to entitle tho Minister of Labour to the confidence of these whose interests it is his special fiffio■tion to protect. . , .

IN CONCLUSION, as the eiatuto covers 24- pages, and includca 63 6celions, wo cannot pretend. that tho foregoing review, though lengthy, is anything like exhaustive. _Wo have written enough, however, to give tho reader aa idea of tho salieait features of -tho new legislation. Without entering tho domain of oaTitroversial politics, wo can iii all fairness urge that the foregoing exposition •of tho act is an effwtivo reply to those who complain that to Government Has' dono nothing for Labour. Tho statute confers benefits unknot in any other country, and it is no more than justice that those responsible for it should bo accorded a meed of credit. It remains dily to add that the statute lias been oaieMy and skilfully drawn, and that, while it would bo too much to expect tiiat judicial interpretation will not reveal somo surprises, the measure is certainly a, crcditable specimen of thq draftsman's art.