EMPLOYERS’ LIABILITY

Taranaki Daily News, 28 June 1934, Page 13

EMPLOYERS’ LIABILITY

DAIRY INDUSTRY AFFECTED

DECISIONS IN LEADING CASES. ADDRESS BY N.D.A. SOLICITOR. He had chosen “some aspects of employers’ liability” as the subject of his address, stated Mr. W. H. Cunningham, solicitor to the N.D.A., “because it gets away from the well-worn subject of company ■ law and subjects associated with it, and because, from inquiries I have had during the past year, a good many companies seem uncertain where they stand as regards some classes of persons doing work or business for them. Queries have been sent to me as to whether ‘ companies are under any liability to directors who may get hurt while doing the company's business and whether highly paid factory managers have any claim against a company if injured while in its employment The subject is a very wide one and in this address I shall not attempt to deal in detail with all possible aspects of it but must be content to place before you the main principles and to refer shortly to some of the leading cases.

“There are,” continued Mr. Cunningham, “two foundations which may give rise to a claim by a servant against a master where the servant is injured in his master’s employment. A claim may be founded on the common law for damages or on the Workers Compensation for Accidents Acts for compensation. Common law liability is imposed only where there has been some breach of duty on the part of the person occasioning it or his servant or agents; the Statute, makes the employer an insurer of his workmen. In some cases a servant may be entitled to claim on eithei ground■ • but he cannot have both remedies. At some stage or other he must elect between the two if he can claim on either ground. I propose first of all to deal shortly with liability arising at common law. COMMON LAW. “Whatever the dangers of the employment which the employed undertake, amongst them is certainly not to be numbered the . risk of the employer’s negligence. For his own personal negligence a master is always liable to his workmen, and the law imposes a duty to take reasonable care in regard to the following matters which are peculiarly his responsibility: 1. The provision of proper and suitable plant. 2. The selection of fit and competent fellow servants. 3. A proper system and control of the work. 4. The observance of regulations imposed by Statute. He has the further duty of maintaining proper- plant and equipment and competent servants which necessitates proper periodical inspections. “In respect of a common law claim there are defences open to an employer which are not available in a claim under the Workers Compensation Act i.e., Contributory negligence; Volenti non fit injuria. As an extension of the principle volenti non fit injuria at common law there is attached to the contract of master and servant the doctrine of common employment that the master is not liable to a workman where injury j to the latter is caused by the act or default of a fellow servant, subject to the limitation that the master must not be negligent in the selection of fit and competent servants. If the person occasioning and the person suffering an injury are fellow servants engaged in a common employment for and under the same master, the master is not liable for the consequences of the injury.

“This doctrine was abolished by Statute and in New Zealand the law abolishing it is now incorporated in Section 67 of the Workers Compensation Act 1908. There is, however, a limit to Rhe amount that can be recovered, namely £lOOO. It was also a maxim of the common law actio personalis moritur cum persona. The harshness of this rule was mitigated by Lord Campbell’s Act passed in England in 1846 our counterpart in New Zealand being “The Deaths

by Accidents Compensation Act 1908” (originally passed in 1880). This enables persons within certain relationships to a deceased person killed by negligence of another, to recover damages for any pecuniary injury suffered as a result of such first person’s death. Where the person who was negligent is dead the action will not lie against his estate, and there is no limit to the amount that may be recovered at common law. WORKERS COMPENSATION ACT. “Coming to the law as laid down by this Statute, the employer is placed in the position of being an insurer of every workman he employs in the event of his meeting with an accident causing him personal injury, such accident arising out of and in the course of his employment. The Act does not allow any arrangement for contracting out of the Act to be recognised. The definition of “a worker” is contained in Section 2 of the Act. It is not correct to say that every person not excluded in terms from the Act is within it, but it is correct to say that every person not specifically excluded whose contract is a contract of service with an employer is included. Taking the statutory definition in the first place there must be a contract of service. That is there must be the relation of master and servant. “The relation of master and servant exists only between persons of whom the one has the order and control of the work done by the other. A master is one who not only prescribes to the workman the end of his work, but directs or at any moment may direct the means also, or, as it has been put, retains the power of | controlling the work. A workman con- j tracts to serve and is in one sense a contractor, but if he is to do the work subject to the will and control of another he cannot be called independent. It may seem a simple matter to decide as a matter of fact whether the relationship does or does not exist, but” added Mr. Cunningham, “many cases illustrate the difficulty that may occur. After quoting several cases, the speaker continued: “Assuming that the relationship of master and servant has been duly established the Act does not include any person employed otherwise than by way of manual labour whose ‘remuneration’ exceeds £4OO a year. “Where a servant’s ‘remuneration’ exceeds £4OO per annum it has to be considered whether or not he is employed by way of manual labour. The test to be employed in answering this question is ‘what is substantially the work he was employed to do ?’ When the employer- offered and the man accepted the employment, was it substantially an offer of manual employment although it involved some other work, or was it an offer of other work although there was attached to it an obligation to do some manual labour.” Mr. Cunningham quoted cases in which a tug master, a mate of a ship and a dairy factory manager were not held a worker.

“Remuneration,” he continued, “means the actual amount whether in money or kind which the workman receives from his employer and includes the value of the use of uniform, board and lodging, bonus, tips in case of persons like waiters, stewards, etc., and free house. As against his remuneration a worker is entitled to set off his actual expenses in earning it.

“Section 3 is perhaps the most important section in the Act as it declares the principle of liability and so (1) is its most important subsection. Accident may be described as an unforseen or unexpected event which takes place without design. The length to which injury by accident will extend was well illustrated,” said Mr. Cunningham by the cases which he quoted. NOT LIABLE FOR CONTRACTORS. Referring to Section 13, Mr. Cunningham said that “while an employer is not liable to an independent contractor he may become liable to pay compensation to the workmen employed by such a contractor by virtue of the provisions of section 13 of the Act where the accident happens on some land, building, ship ori premises of which the employer of the contractor has the occupation possession or control, or of which some other person is in occupation as the tenant or sub-tenant of the employer, or on or in which the employer has contracted to do the work in connection with which the accident happens. Liability only arises, (a) where the work on which the work-

er is employed at the time of the accident is directly a part of or a process in the trade or business of the principal, or (b) the work in which the worker is engaged is one of those occupations specified in the schedule of the Act. (Mining, quarrying, the erection or demolition of any building or structure, etc).

“Section 15 provided that no compensation shall be payable in respect of any accident which is attributable to the serious and wilful misconduct of the worker injured unless the injury results in death or serious and permanent disablement.

“Section 18,” said Mr. Cunningham, “showed the necessity for independent legal and medical advice when settlement of compensation is agreed upon; Section 26 that notice of accident must be given to employer; Section 27 that action must be commenced within six months of injury or death or last payment of compensation or from date of admission in writing of liability; Section 60 that compensation moneys were not assignable; while in the schedule, injuries: “loss of” included “permanent loss of the use of.” SPEAKER ANSWERS QUESTIONS. Replying to Mr. Minafie, Lowgarth, Mr. Cunningham said that if an employer could order a sharemilker about like an employee, then the employer would be liable; otherwise he would not be. Replying to Mr. Sinclair, Opotiki, and Mr. Tosland, Pihama, Mr. Cunningham said that a farmer would not be liable in the event of an employee of a sharemilker, who was a contractor, meeting with an accident.

Mr. S. B. Hall, Okato, asked whether it was possible for a dairy factory manager to claim under the Act. Mr. Cunningham said that there was no doubt that a factory manager was a servant. In the event of his receiving over £4OO per annum the manager would have to prove that he was engaged in manual labour. A man not a manual labourer receiving over £4OO per year would have a right under common law, but he would have to prove negligence. To Mr. Kyle, Kairanga, the speaker said casual labour would be entitled to claim in the event of an accident. Mr. Cameron, Kateike, said that under the present Act it would be quite safe to say that a factory manager receiving over £4OO a year was not engaged wholly in manual labour. Mr. Jolly, Martinborough, said that some insurance companies noted a policy as covering sharemilkers.

Replying to Mr. Begbie, Heretaunga, Mr. Cunningham said that a contractor who was subject to taking orders from his employer would be regarded as a worker.

Mr. Reid asked whether any liability could come back on a dairy company of a passenger carried by an independent cream contractor was injured, and what would be the position in regard to an accident at a petrol pump. Mr. Cunningham said that in the first case there would be no liability on the company, and in the second, providing the regulations were strictly complied with, an action could not hold, as under common law negligence would have to be proved. Replying to Mr. Sinclair, Mr. Cunningham stated that a careless man was liable for all acts of carelessness.