MANGAHAO TUNNEL TRAGEDY

Otago Witness, Issue 3613, 12 June 1923, Page 59

MANGAHAO TUNNEL TRAGEDY

COMPENSATION CLAIMS. CROWN NOT LIABLE WELLINGTON, May 31. His Honor Sir John Salmond has delivered judgment in the case of Emma Birss v. the King, in which a special case had been stated under the code of civil pro cedure. Suppliant claimed damages from Crown under the Death by Accident Compensation Act. 1908, for the death cf her son, Charles William Birss. Deceased was a member of a party of co-operative workers. who made, a contract with the Public Works Department for the construction of the tunnel in connection with the Mangahao hydro-electrie works. On July 3 he, along with several other members of the party, met their dealhs by inhaling noxious gases, which suppliant alleged had been allowed to accumulate by the negligence of the Government servants who were charged with the duty of ventilating the tunnel. The co-operative workers were, not servants of the Crown, but independent contractors. After dealing at much length with the law points involved, Sir John Salmond held that the Crown was under no obligation to the relatives of the deceased under the Deatli by Accident Compensation Act, and he therefore dismissed the petition, with costs according to scale. During the course of his judgment Sir John Salmond pointed out that the parties to the contract had entered into an insurance policy which imposed a limit ot £BOO in respect to each member of the party as far as the liability at common law was concerned. Contemporaneously with this insurance each member of the co-operative parly signed the following undertaking to the Crown:

We. in consideration of his Majesty the King accepting the insurance policy taken out in the Government Life Insurance and this undertaking as sufficient compliance with clause 28 of the conditions of contract made on the 31st of March, 1921, between us and his Majesty the King, do hereby agree for ourselves and each of us, and each of our representatives, executors, administrators, and any person or persons entitled in case cf our or any of our deaths to look to the proceeds of such insurance alone tor compensation for injury sustained in such employment, whether resulting in death or not, and in consideration of the Crown undertaking to do all things possible to comply with all cur reasonable requirements as to safety precautions—do further agree that his Majesty shall not be liable under the Deaths By Accident Act. 1908. or otherwise, for any wrongful act or default in •'connection with the said works or construction at the Mangahao hydro-electric works, or in respect of any negligence occasioning such injury during the continuance of such contract. Sir John Salmond said he saw no reason why such an agreement should not be binding. The total common liability of the Crown as limited by the Crown Suits Act amounted to £24,000 —namely, £2OOO in respect of each member of the party. The Crown accepted an insurance of the £4OOO instead of one for full liability, in consideration of the abandonment of any claim for damages. This consideration was, therefore. sufficient to support the undertaking of indemnity given by the deceased in the present case, and to give it full effect as a binding contract. His Honor commented on the fact that the Public Works Department was still using printed forms of contract which refer to Acts repealed 15 years ago.