UNBORN CHILD

Otago Daily Times, Issue 26782, 27 May 1948, Page 2

UNBORN CHILD

RIGHTS UNDER WORKERS’ COMPENSATION AFFIRMATIVE FINDING The question whether a child born 18 months after an accident to his father was a dependent within the meaning of the Workers’ Compensation Act was decided in a reserved judgment given by Judge Ongley in the Compensation Court yesterday. The effect of the judgment was to answer the question in the affirmative. The father, Eric Desmond Callaghan, an employee of the New Zealand Refrigerating Company, Ltd., met with an accident on March 29, 1943. He had then one son, James Eric Callaghan, aged about one year. Another son, Barry Rugby Callaghan, was born on September 29, 1944. Eric Desmond Callaghan died on December 16, 1945, as a result of the accident. “ Barry Rugby Callaghan,” the judgment said, “as a son of the deceased worker, is a near relative, but question is whether he was a dependent—namely, whether he was (1) domiciled or resident in New Zealand at the time of the accident, and (2) wholly or partly dependent upon the earnings of the deceased worker at the time of the accident.” After quoting a section of the Act, which pointed out that children of a deceased worker “ shall be conclusively presumed to have been dependent on the earnings of that worker at the time of the accident which caused his death,” the judgment'held that the court must presume that Barry Rugby Callaghan was so dependent. The judgment added that it must be presumed that Barry .Rugby Callaghan was in existence at the time of the accident. “ Existence nowhere would be a contradiction,” the judge continued. "It seems to follow that I must give his presumed existence a location and a domicile.” The judgment declared that the widow, Runa Florence Callaghan, and the sons, James Eric Callaghan and Barry Rugby Callaghan, were the sole dependents of the deceased worker. At the hearing Mr G. M. Lloyd appeared for the widow and children and Mr C. N. Irvine for the Public Trustee. Petition of Right ‘‘These proceedings have been launched solely to ensure the suppliant’s rights being reserved in any future incapacity outside of the period provided by the. Act,” said Mr J. B. Thomson, counsel for Noel Ivan Murdock, the suppliant in an action for a petition of right against the King, the respondent being represented by Mr F. B. Adams. Counsel explained that suppliant had met with an accident during his employment with the Public Works Department, and there had been recurrent periods of incapacity since July, 1945. In order to keep the suppliant’s rights open, counsel contended that the court could either adjourn the case or provide for the payment of a “ fictional award ’’ of one penny a week. Mr Adams asked that the case should be disposed of by the court on the facts before it. To adjourn the case as was suggested by the suppliant’s counsel would be a denial of justice and the cause of unnecessary delay. If the case was adjourned for the suppliant it could also be adjourned for the Respondent. After hearing lengthy legal argument, the court reserved its decision.