COAL MINE OWNERS' RISK.

Otago Witness, Issue 2862, 20 January 1909, Page 83

COAL MINE OWNERS' RISK.

A LEGAL OPINION The following legal opinion by Mr John MacGregor has been obtained by Mr W. fccott, secretary of the Otago Coal Miners' Association : — I am asked to advise generally as to the effect upon the position of a coal mining company ac a ooal owner of the provisions in the new Compensation Act dealing with miners' complaint (pneumoconiosis). The fundamental principle of the act is that employers are to be liable to their employees for compensation^ for personal injury' arising out of and m the course of the employment, even when there is no negligence on the part of the employer. Although miners' complaint and various kinds of poisoning are personal injuries "arising out of and in the cour=e " of the employment, they are- not "injuries by accident." and therefore they did not fall within the original act ; and a miner disabled by pneumoconiosis would not have been entitled to compensation. The art passed last session consolidating and amending the law on the subject of compensation for accidents has altered this. This change hns been made by section 10 of the act, which declares that in the case of the following diseases — nnmely, anthrax, pneumoconiosis, and poisoning- by lead, mercury, phosphorus, and arsenic — the worker affoetod (or his representative, in case of death) is to be entitWl to compensation "as if the disease was a personal injury by ACCIDENT." But it was, of course, necps=n.ry to impose certain restrictions and conditions that do not apply in cases of accident in the ordinary and proper sp^zp ■ not only must the di?ea?e be due to the naiure of the employment, but it must bo proved (a) that the worker has br-on disabled (i.e., rendered incapable of enrrving on vvoik in tho occupation in v. lijrh the disease was contrnrtpd) ; (b) that tho di-nbl"'pent was caused by the dison r e, <<■) thai thf> disease va^ contracted vi'hm tl» 12 months imnicdiatolj preceding ti;p ih'ablo""iit The position, then, is this, (hot fi n-ii-c." claiming compentatio.-i from his employer

would have to prove (a) (b) and (c), and the practical question to be answered is whether this ehapge yi the law in so far as it concerns " miner's complaint " imposes upon a coal mining company any serious additional liability to ciaims for compensation. lam satisfied that it does not. Of the six diseases enumerated in section 10 the only one that can possibly concern such a company is pneumoconiosis ; assuming that this disease can be contracted in coal -mining, it is obvious from the information supplied to me as to the nature of the disease that it would be almost impossible to conceive a case in which a coal miner claiming compensation could prove that he had contracted the disease within the 12 months immediately preceding his disablement ; and, if this is clear in the case of a claim made by the miner himself, it i 3 still clearer m the case of a claim made by his. representatives. It is quite certain that the act was not intended to operate retrospectively — i.e., to give to workere who were suffering from any of the enume rated diseases at the time of the commenceni'ent of the- act, a right to compensation ; and Ido not think it can be seriously contended that it does give- such a right. I do not think there is any possibility of a miner who had contracted the disease prior t<i the commencement of the act ever becominig entitled to compensation in respect thereof under the act as it stands. From the statement submitted to me it seems clear that men working in coai : mines do not contract pneumoconiosis. If my view of the law, as stated above, is correct, then it follows that there is no risk of claims for compensation against a coal mining company being successfully made by men who had contracted the disease in quartz mines, and I fail to see on what grounds the coal mining companies should make common cause with the quartz miningcompanies, unless the coal miners make common cause with the quartz miners. On these grounds I come to the conclusion that, if the insurance companies insist upon increased rates of premium and a medical examination of coal mincers the oompatiKe should continue their accident policies in the old form, and not ask the companies to insure against any rhks under secrion 10. The miners on the West Coast have certainly been exceedingly unreasonable in their action, but they have, I think, bean wrongly advised, for, if my view of the law should prove to be correct, the position is simply this : That any miner who refuses to submit to a medical examination thereby make it imposible that he can ever recover compensation for pneumoconiosis or, indeed, for any of the enumerated diseases, and, so far as he is concerned, the change might just as well never have been made, as he would, by hi* refusal, have praeticaly put himself outside section 10. It w ill probably occur to you that my view of the enactment must be wrong, as otherwise it is difficult to understand how ihe Government ar.d the ir.suiance companies, as well as the miners, have taken so serious a view of the situation ; but when one bears in ro.ir.d that, if my view is correct, it follows that the change in the law can confer but little benefit on the miners, and none at all on these who refu~e to submit to examination, one can easily understand \\h\ the Government would not be anxious that the miners should realise this all at ones. As for the insurance companies it is not difficult to understand why they should seek to magnify the risk, or why thsy should be chargined by the action of the Government in indemnifying the Insurance Department and so diverting busmr-s-s in that direction. If j the business should prove to be highly profitable (as it must do if my view qf the "risk" is correct) the companies can hardly complain when they find that the Government have taken them at their word. I January 12, 1909. J. MacGhegoe.