A COMPENSATION CLAIM.

Otago Witness, Issue 2505, 26 March 1902, Page 29

A COMPENSATION CLAIM.

BEFOEE THE ARBITRATION COURT. On Thursday morning a claim for £400 for compensation was investigated by the Ar bitration Court. Mr Justice Ccoper pre- . sided, and was assisted by Messrs IR. Slatei and S. Brown. The claim 1 was brought by the Public Trustee I (representing the widow and family of the late i Archibald M'Lean) against the First Chance , Gold Dredging Company. Mr Jr F. Woodhouse appeared for the plaintiff.; Mr W. A. S:m for the company. Mr Woodhouse said that the claim was brought under the Workers' Compensation Act of 1900. The Public Trustee was the personal representative of M'Lean, the company's dredgemaster, who was diowned on the 3rd October last. M'Lean was engaged on the 20th November, 1900, at a salary of £5 a week, the appointment being subject to a month's notice, and continued in his employment until his death. He fell" oS the dredge whilst, as claimant said, he was in the company's employment. Hie Public Trustee took out administration of the estate, and now claimed compensation. Deceased was a~ widower, and left a daughter three years old, and claimant asked fov the full amount of £400 allowed by the act. Deceased's estate was a very sinal! one. There wa« a •1 policy on his life for £100, some sh?res worth • "'about JEG7, and other items, making about £250 altogether, against which had to be placed debts amounting to about -£200. Mr Sim said he proposed to prove that on -"t&e 2nd" October, the day--'feeforc tha death, ths following tesolution was- passed by tho •company's directors: — " That the drcitgc be closed down, and all hands be discharged, and the engineer bf placed in charge. On the same day Mr L. G. Reeves, secretaiy ol the company, sent this telegram to M'Lean : " Directors decided close dotirn ; discharge all hands, n.ciudmg yourself, and appoint engineer caretaker meantime. At the same time a telegiam was sent to Mr Cook, the engineer. Those teigrains were sent on the afternoon of the 2nd October, and it would be proved that they were received the same day By M'Lean and the engineer. The following day M'Lean discharged the hands, but remained on the dredge himself, and whilst doing something about the deck he slipped overboard. Mr Brown : Whilst doing his ordinary work ? Mr Sim : That was questioned. What ! Mr Cook said was that M'Lean was picking gravel out of holes between the planking — 1 something in the nature of cleaning-up wcrk. • What he (Mr Sim) submitted was that the j l.otice given, in the telegram terminated the engagement. Mr Brown . He was entitled to notice. j Mr Sim : Yes, but the relation of master and . servant was put an end to. It was supposed at ' one time that if a master wrongfully discharged i a. servant the seivant could continue at the j master's disposal and claim wagea ; but the , later authorities laid it -down that in order to ' sustain a claim for compensation it must be , shown that the person was in the employment. | That was ths legal aspect of the case, and the court must deal with it in that way. | L. G. Reeves, the first witness, gave evidence j as to the telegrams being sent to Mr M'Lean and , Mr Ccok. To Mr Woodhouse: M'Lean was paid every four weeks. He bad been paid up •j to about a fortnight before his death. To the ! Court . The company had all their men inj sured. j J Wm. L. Cook, engineer, deposed that on tho . day before the death M'Lian went to the j Alexandra Post Office, and on returning to the I hotel he handed witness a telegram. M'Lean ' also received one himself. They showed each { other the telegrams. Next morning they returned to the dredge together. M'Lean tcok the men ashore to put m fresh " backers," and they did not go aboard again after dinner. They had been discharged. During the afternoon M'Lean w«is working about the deck. The last^ witness saw of him was at about five minutes' 5 to 4 o'clock, when he was throwing gravel into the river. That was proper cleimng-up work if the dredge was to be left ship-shape. Witness could not suggaat how he got into the water. To Mr Woodhouae; M'Lean had done ..nothing, so far as witness knew, in the way of giving »p charge. Witness had not up to the time of the death taken charge as caretaker. To Mr Sim: Before M'Lean's death all that was necessary for the safety of the dredge had been done. He v/as cleaning up in order to leave things tidy. To the- Court : In practice a dredgemaster was supposed to put his Hand to everything. If on receiving the telegrams M'Lean had told witness to go down and moor the <?r?dge he could have done so with -the assists nee of the hands, but he was .'ot to have authority over the handt. Mr Sim then pic.-e.ided to aigue the law of the case. He contended thut i-he engagement was determined— that it v/as open to M'Lean to treat the telegram as a notice dismissing him, and if wrongfully disnii-sed to recover for wrongful dismissal. The relation of master and servant had come to an cid, and M'Lean , was not at the time a worker within (he meaning of the act. Even taking the view that had been suggested by his Honor, thpt there was an implied contract to employ M'Lean to do certain things before leaving, it must be I perfectly plain that he waa not enipiovpd to ! clean the deck. If there was an implied contract, it was to discharge the haud-t and put the dredge in a place of safety. . His Honor Who do you isy was id charge? Mr feini Ihe engineer. His Honor He fays that he was not. Mr Sun- Weil, if so, nobody was in charge. Hl3 Honor If no telegram had been sent, and M'Lean had slipped off while sweeping up gravel, would not the employer be liable 9 Mr Sun answpied that there might be liability if he was doing something in the course ol his ordinary operations, not otherwise. Supposing he took a t<tney to paint the pontoons, and fell o\erboard, it could not he contended that he was doing i-ometiiing in the course of his duty. Hu Hoiior s.ud. that that was a different c.ise altogether. M'Lean evidently fairly accepted the lesoiution of the directors, and conceived it to be his duty to put the diedge in order before delivering her over, and whilst cairymg out what ho thus conceived to be his duty he was drowned. Those were the plain facts. Whether Mr Sim could r^ise an inference of law which relieved the company from liability was anothei matter. Mr Sim Baid he submitted that at the most it was M'Lean's duty to put the dredge in a place of safety, and that what he was doing when he fell overboard was not neee&sary for the safety of the dredge. As to the amount claimed, learned counsel was submitting that the court had discretion to reduce the sum, when His Honor said the court were satisfied that if the claimant was entitled to succeed, £iOO was not excessive. That sum invested would only bring in about 3s a week for the support of a child now three years of age. Further, if might be for the Public Tiustee to consider whether a claim should not be brought also om .behalf of the illegitimate child now five years old. His Honor further said that his present opinion was that if the relation of master and servant had not been terminated the whole of the woTk that M'Lcjn did up to the time of his death was within the ordinary course of his employment, and the only question on winch the" court wished to hear Mr Woodhouse was as to whether the receipt of the

telegram terminated the relation or mas:, -.4 servant. Mr Woodhcuse submitted that while the fe 3gram was perhaps a little ambiguous, clearlyj it was not an out-and-cmt notice of dismissa,He read it as in the first place an intimation that the directors intended to close down; secondly, as an instruction to M'Lean to do certain things. He naturally would not ask the engineer to take charge until he had put her in order, and if the engineer had refused to take her over, as he said he would have done, instructions would have to be obtaihed from Dunedin. M'Lean was entitled to con- . sider himself a servant until these things were dene. His Honor intimated that he had very little cloubt as to the case, but he would look into the act, and give judgment on the following mcrrung. The Arbitration Court sat on Saturday mort. mg to give judgment in the compensation case of the Public Trustee (representing the wife and family of the late Archibald M'Lean) v. the First Chance Gold Dredging Company. Mr Justice Cooper read the judgment, as follows. — The deceased was on November 20, 1900, engaged by the - respondents as a dredgemaater under the following written appointment, signed by the secretary of the company and addressed to the deceased: — "I have to inform you 'that you have Been appointed" to the position ol dredgemaster, at a salary of £5 per week," tc. date' from the Ist February next, providing the dredge is ready for you -at that time. You sue,, not required to -work a shift. You are to have the appointing and' discharging of all hand? on the dredge excepting ttie engineer. The firemen to be ufader the contiol-of the engineer,subject to the over-riding authority of th< dredgemaster. One mouth's notice of termination on either side." On the 2nd October, 1901, the company resolved " that the dredge be closed down, and" that all hands bo discharged, and the engineer be placed in charge. " On the afternoon of the same day the secretaj*. of the company sent a telegram to the deceased in the following terms : — ' M'Lean, Firs! Chance, Alexandra. — Directors decided clos« down. Discharge all hands, including yourself, and appoint engineer caretaker meantime.'' At the same time the following telegram was soil! to the engineer: — " Cooke, engineer First Chance, Alexandra. — Directors decided close down ; desire you to remain in charge of- dxedge. Writing. No letter was, in fact, sent. These telegrams were both received by the deceased about 6 p.m. on the 2nd October, &nd th.c one to the engineer was handed by him to Cooke. About 7 p.m. the telegrams were read and considered by both deceased and Cooke. Deceased next, morning went down to the dredge with'the engineer. During the morning the other hands were engaged mooring" the 'dredge under the supervision of the deceased, and this work was finished about 1 p.m., and the other hands then, ceased work and did not again return to the dredge. The engineer was engaged during the morning and up to about 4 o'clock in the afternoon doing some repairing work in the engine room, -while the deceased was employed on the deck after the dredge had been moored doing the work stated, by the engineer, who was called as a witness for the defence, to be work preparatory to laying the dredge up. The^deceased was last seen by the engineer about 3".55 p.m., and he was then clearing some gravel off the deck, and throwing it into the water. About fiva minutes afterwards the engineer heard a scream, and coming up from the engine room akw- that deceased had fallen into the river. .The engineer was unablo to save him, and the deceased was diowned. The engineer states {hat the* work which the deceased had been doing, up to the time he last saw him on deck was " dredgeroaster's work," ." work preparatory to laying the dredge up," and " necessary work in this way, that the dredge should be left clean and tidy." He says that the deceased had been, working continuously ail the afternoon, and was in charge of the dredge up to tfie time of the accident, and that he (the engineer) had not taken over charge as caretaker, nor, in fact, did ho intend. to do so, although he had not informed the deceased that he would decline the office. Mr Sim, for the defence, contends that at the time of the accident the deceased was not in the employment of the defendants, and that therefore the accident was not one arisingout of and in the course of the employment of the respondent company, and that the company are not therefore liable to pay compensation. The term " employment is not expressly defined in the act, but inferentially (under paragraph i of section 2), it means the manual or other service of a worker under, a. contract with an employer, and whether oral or in wilting, express or implied. The respondents say that the telegram of the 2nd October, when received by the deceased, *■ amounted to a termination of the contract of service, that, the deceased was in what he subsequently did a more volunteer, and not in their employment. We are unable to ngree with this view. In our opinion the reasonable, construction of the telegram was, that the company having determined to. cease work, gave notice to the deceased that they had determined to close down, and authorised the deceased to di&charge the hands and hand the dredge over to a caretaker. The deceased was entitled tc read the telegram in thi3 way : " Although you ere entitled to a month's notice of termination of yom- engagement, wq. have determined ta clo3e down and discharge all hands, including yourself, except the engineer. We authorise you to do this, and hand the dredge over to th« engineer." Implied in this was clet>rly a request to the deceased to do the necessary work incident to the engineer taking charge. The mooring of ths dredge and the necessary work in placi: g the dredge in a fit condition for tho caretaker was work which, iv our opinion, the deceased was impliejly authorissd by the defendants to perform, and it was while doing that work that the deceased met with the accident which caused nis death. The principle btuted by Mr Sim that, where the agreement of service provides for notice of ita termination, dismissal without notice terminates the relationship of master and servant and leaves the servant to his remedy by an action for damages is no doubt well settled, but' that principle does not apply to the case where, as hera, there is^. coupled with the notice of dismissal a request either express of implied to do certain work after the receipt of the notice. For that purpose the relationship of employer and employee continues. Mr Sim partially admitted this, but contended that the deceased had no authority to do more than moor the dredge. If, as there can be no doubt is the case here, the notice to the deceased authorised him to acl hi the service of his employers after the receipt of the notice, the deceased was, in our opinion, justified in inferring that he wai authorised to do all that was reasonably necessary to lay the dredge up. The clearing of the gravel from the sliute and the deck, and the other work,— which, according to the eagineei. was necessary work. — done by the deceased, upon the deck after the ordinary hands ceased; work, was, we think, well within ths terms ot the authority of the telegram. We hold, there fore, that at the time of the accident the de< ceased was in the employment of the defend* ants, and that the accident arose out of and in the course of his employment. The deceased's salaiy was £5 per week. He had been about eight months in the service of the respondents. The schedule provides that if a worker leaves any dependents wholly dependent on his earnings, and if he has been less than three yearsin the employment of the employer, the compensation shall, in the case of hia deatht.be Ob

Dulated at 156 times Ms average weekly earnings luring the period of his actual employment. Th« maximum, amount is limited to £400. We " read this schedule as giving the court no discretion, to award less than £400 if the basis amounts to or exceeds £400. In th.s case the basis is £780, and the court is therefore bound to award the maximum sum of £400. If the court had a discretion to award less, we could not do so in the present case. The deceased hss left a daughter about three years of age, Who was wholly dependent on his earnings at the time of his death. The sum of £400 fairly invested will nob yield more than is sufficient to provide for the maintenance of the child, even if the- child is entitled to be sole dependent. 1 •In the course of the case it transpired that - the deceased had also left an illegitimate child about five years of age, apparently also de- ' pendent on his earnings. Counsel on both sides assumed that an illegitimate child could not be dependent within the meaning of the act. f(Ve do not decide this question, but we think it is extremely doubtful if the words " son " and " daughter " used in the first schedule of .the act necessarily mean only legitimate childxen. There is no authority in the British Act other than a case decided in Scotland — Clement v. Bell, 1899, sc. Sess, Cases 1.F., 924. In that ~ case the court held that- an illegitimate child could not be a dependent, but und« the •British Act the definition, of ••dependent" applicable to Scotland is " such of the persona esfci.tted- according to the law of Scotland to Bue^the employers for damages or solatium in ' arespeet-of the death of the workman as were ■wholly or in part dependent upon the earningsof thff workmen at the time- of his death." An " illegitimate- child VEas'not under the law of Scotland entitled to sue for such damages; and therefore was necessarily not within the British * \A.ct so far as Scotland was concerned. In England the dependents are the members of the "workman's family specified in ' the Fatal - (Accidents Act, 1846 ' (Lord Campbell's Act) aa •were^rholly or in part dependent on his earnings." Under Lord Campbell's Act these persons are defined as wife, husband, parent, and . child, and child includes son, daughter, grandson, *nd granddaughter and stepson and stepdaughter. In Dickinson v. the Nortb-Eastera .Railway Company. 33 L.J., Ex. 91, the court held that an illegitimate child was not wiahin (Lord Campbell's Act. But a recent statute of this co'ony— " The Legitimatisation Act, 1894," " section' 6, amends section 2 of !t The New Zea3and Deaths by Accident Compensation Act. 1886" (substantially a re-enactment of Lord CamobelFs Act), by providing that the word "child" in that act shall include " illegitimate child." The schediUe in " The Workers' ComTiensmtion for Accidents Act, 1900," defining dependents is taken from section 2 of the act of 1860, and we think it is by no means clear that the words " son " and "' daughter " used 3n the act of 1900 must be limited to legitimate children. The question, therefore, as to ■whether the illegitimate child of the deceased as a dependent mu3t be left open to be determined: under the procedure prescribed by sec,lioa » of the conditioHß in the second schedule Xo the cct, and ibe Public Trustee will no Vloubfc- take the necessary steps to have thi3 point decided. The company, of course, are, after payment of the sum awarded in this case. Sree from any further liability. The court therefore award* to the claimant *he sum oi rompesation, and direct* tne claimant io hold it until the Question o£ the right of the tfecessed^ illegitimate clrild to be a dependent as settled- by the court. Tie respondents mus. x>av t&« daunsml'B costs, which, the court fixes i V.t thfrsum of Mh 15s. court fees, and witnesses j expenses (it< am*. The amount awarded s>nu ; *-osig to be paid within 14 days from this "dis Hone added that a formal awa'd . •would have to be prepared hy the csimant s eolicitor and sijraed by the court and m tha. eward it would have to be stated that the cu'?■fion of the rights of th& illegitimate child of t"« deceased to share m the sum awaided would l»e "reserved for the further consideration oi ""f'Wwdhouse said that the Public Trustee »ff j.d teke the necessary steps.