NEW ZEALAND.

WORKERS' COMPENSATION ACT, 1908.(a)

SECTION 1. This act may be cited as the Workers' Compensation Act, 1908, and shall come into operation on the first day of January, nineteen hundred and nine. SEC. 2. In this act, unless a different intention appears,—

"Compensation" means compensation under this act:

"Court of arbitration" means the court of arbitration established under the Industrial Conciliation and Arbitration Act, 1908:

"Dependant' means a total dependant or a partial dependant as hereinafter defined:

"Employer" includes any body of persons, corporate or unincorporate, and the representatives of a deceased employer:

"Factory" has the same meaning as in the Factories Act, 1908:

"Order" means any judgment, direction, declaration, or order given or made by the court in pursuance of this act:

"Partial dependants" means such of the relatives of a worker as were domiciled or resident in New Zealand at the time of the accident which caused his death and were partially dependent upon his earnings at the time of that accident:

"Prescribed" means prescribed by this act or by regulations made under the authority thereof:

"Regulations" means regulations made by the governor by order in council: "Relative" means wife or husband, father, mother, grandfather, grandmother, stepfather, stepmother, son, daughter, illegitimate son, illegitimate daughter, grandson, granddaughter, stepson, stepdaughter, brother, sister, half-brother, half-sister; and with respect to an illegitimate worker includes his mother, and his brothers and sisters, whether legitimate or illegitimate, by the same father and mother:

"Representative" means an executor to whom probate has been granted, or an administrator, or the public trustee lawfully administering the estate of a deceased person:

"Seaman" means any worker employed as a master, officer, seaman, apprentice, or in any other capacity whatever on board a ship by the owner or charterer thereof: "Ship" means any ship, vessel, boat, or other craft:

"The court" means the court which by virtue of the provisions of this act has jurisdiction in the matter referred to:

"Trade or business" includes trade, business, or work carried on temporarily or permanently by or on behalf of the employer to which the act would apply if such trade, business, or work were partly or wholly the regular trade, business, or work of an employer:

"Total dependants" means such of the relatives of a worker as were domiciled or resident in New Zealand at the time of the accident which caused his death and were wholly dependent upon his earnings at the time of that accident:

"Worker" means any person who has entered into or works under a contract of service or apprenticeship with an employer, whether by way of manual labour, clerical work, or otherwise, and whether remunerated by wages, salary, or otherwise; but does not include any person whose average weekly earnings, calculated in accordance with the provisions of this act, exceed five pounds [$24.33].

PART I.
Compensation.

SEC. 3. (1) If in any employment to which this act applies personal injury by accident arising out of and in the course of the employment is caused to a worker, his employer shall be liable to pay compensation in accordance with the provisions of this act.

a Labor Laws of New Zealand, pp. 480-508. Compiled by the direction of the Minister of Labor. Wellington, 1909.

(2) This act applies only to the employment of a worker

(a) In and for the purposes of any trade or business carried on by the employer; or (b) In any occupation specified in the first schedule hereto, whether carried on for the purposes of the employer's trade or business or not.

(3) For the purposes of this subsection an employer may have more than one trade or business.

(4) The exercise and performance of the powers, duties, or functions of any corporation or of any local authority or other governing body of a corporation shall, for the purposes of this act, be deemed to be the trade or business of the corporation.

SEC. 4. Where the death of the worker results from the injury the amount of compensation payable shall be as follows:

(a) If the worker leaves any total dependants, the compensation shall be a sum equal to one hundred and fifty-six times his average weekly earnings, or the sum of two hundred pounds [$973.30], whichever of those sums is the larger, but not exceeding in any case five hundred pounds [$2,433.25].

(b) If the worker does not leave any total dependants, but leaves any partial dependants, the compensation shall be a sum equal to three times the value of the benefits received by these dependants from the deceased worker during the twelve months immediately preceding the accident which caused his death, but not exceeding in the aggregate in any case the sum payable under the foregoing provisions.

(c) If any child is born to a worker after his death, that child shall be deemed to be a dependant of the worker in the same manner as if born in his father's lifetime.

(e) [sic] Whether the worker leaves dependants or not, there shall be payable, in addition to the compensation (if any) payable under the preceding paragraphs of this section, a sum equal to the reasonable expenses of his medical or surgical attendance, including first aid, and of his funeral, but not exceeding twenty pounds [$97.33].

(f) In every case the amount of any weekly payments made under this act to the worker in respect of the accident which caused his death, and any lump sum paid in lieu thereof, shall be deducted from the amount of compensation payable in respect of his death.

SEC. 5. (1) Where the worker's total or partial incapacity for work results from the injury, the compensation payable shall, in default of agreement, be in the discretion of the court either a lump sum or a weekly payment during the period of his incapacity. (2) In exercising its jurisdiction to award a lump sum the court shall take into consideration the ability of the employer to make compensation in this form.

(3) When a lump sum is awarded by way of compensation under this act instead of a weekly payment, it shall be a sum equal to the present value at five per centum compound interest of the aggregate of the weekly payments which in the opinion of the court would probably become payable to the worker during the period of his incapacity if compensation by way of a weekly payment were then awarded in lieu of a lump sum.

(4) If the incapacity lasts less than seven days, compensation shall not be payable in respect thereof.

(5) If the incapacity lasts less than fourteen days, no compensation shall be payable in respect of the first seven days.

(6) During any period of total incapacity the weekly payment shall be one-half of the worker's average weekly earnings at the time of the accident; but where the worker's ordinary rate of pay for the work at which he was employed at the time of the accident was not less than thirty shillings [$7.30] per week, the weekly payment shall not be less than one pound [$4.87].

(7) During any period of partial incapacity the weekly payment shall be one-half of the difference between the amount of the average weekly earnings before the accident and the average weekly amount which the worker is earning or able to earn in some suitable employment or business after the accident.

(8) Weekly payments shall in no case extend over a longer aggregate period than six years.

(9) The aggregate amount of weekly payments shall in no case exceed five hundred pounds [$2,433.25].

(10) In fixing the amount of the weekly payment regard shall be had to any payment, allowance, or benefit which the worker may receive from the employer during the period of his incapacity.

SEC. 6. (1) For the purposes of this act the term "average weekly earnings" means the average weekly earnings received by a worker while at work during the twelve months preceding the accident if he has been so long employed by the same employer, and if not, then for any less period during which he has been in the employment of the same employer; but in calculating such average no account shall be taken of any periods during which the worker has been absent from work.

(2) Where by reason of the shortness of the time during which a worker has been in the employment of his employer, or of the casual nature of the employment, or the terms of the employment, it is impracticable at the date of the accident to compute the rate of his remuneration in accordance with the foregoing provisions of this act, his average weekly earnings shall be deemed to be the average weekly amount which during the twelve months previous to the accident was being earned by a person in the same grade employed at the same work by the same employer, or, if there is no such person so employed, then by a person in the same grade employed in the same class of employment and in the same district.

(3) Where a worker has entered into concurrent contracts of service with two or more employers under which he works at one time for one such employer and at another time for another such employer, his average weekly earnings shall be computed as if his earnings under all such contracts were earnings in the employment of the employer for whom he was working at the time of the accident.

(4) In calculating average weekly earnings no account shall be taken of any sums that are paid to a worker to cover any special expenses entailed on him by the nature of his employment.

SEC. 7. With respect to casual workers employed as stevedores, lumpers, or wharf laborers, the following special provision shall apply:

The worker's average weekly earnings shall be deemed to be not less than a full working-week's earnings at the ordinary (but not overtime) rate of pay for the work at which he was employed at the time of the accident, notwithstanding that he may not have actually worked or the employment may not have actually continued for the full week, and the compensation shall be computed and assessed accordingly; but in no case shall the weekly payment be less than one pound [$4.87].

SEC. 8. (1) Notwithstanding anything herein before contained as to the rate of compensation, compensation for the injuries mentioned in the first column of the second schedule to this act shall be assessed in the manner indicated in the second column of that schedule.

(2) Nothing in the said schedule shall limit the amount of compensation recoverable for any such injury during any period of total incapacity due to illness resulting from that injury, but any sum so received shall be taken into account in estimating the compensation payable in accordance with the said schedule.

SEC. 9. (1) When a worker is at the time of the accident under the age of twentyone years, and his incapacity, whether total or partial, is permanent, his average weekly earnings shall be deemed to be not less than two pounds [$9.73] per week, and the reduction of his earning power shall be deemed to be not less than the difference between that sum and the weekly sum which he will probably be able to earn after attaining the age of twenty-one years.

(2) Nothing in this section shall extend to the compensation payable on the death of a worker.

SEC. 10. (1) If in any employment to which this act applies a worker contracts any disease to which this section applies, and the disease is due to the nature of the said employment, within the twelve months previous to the date of the disablement, and the incapacity or death of the worker results from that disease, compensation shall be payable as if the disease was a personal injury by accident arising out of and in the course of that employment, and all the provisions of this act shall apply accordingly, subject, however, to the provisions of this section.

(2) No compensation shall be payable under this section in respect of the incapacity or death of a worker if that incapacity commences or that death happens, as the case may be, more than twelve months after the worker has ceased to be employed by the employer from whom the compensation is claimed in any employment to which this act applies and to the nature of which the disease is due:

Provided that this subsection shall not apply to the death of a worker when his death has been preceded, whether immediately or not, by any period of incapacity in respect of which the employer is liable under this section.

(3) For the purpose of calculating the average weekly earnings of the worker in a claim for compensation under this section, the commencement of the incapacity of the worker (or the date of his death if there has been no previous period of incapacity) shall be treated as the date of the happening of the accident, if he is then employed by the employer from whom the compensation is claimed in any employment to which this act applies and to the nature of which the disease is due; and if he is not then so employed, the last day on which he was so employed shall for this purpose be treated as the date of the happening of the accident.

(4) For all the other purposes of this act the commencement of the incapacity of the worker, or the date of his death if there has been no previous period of incapacity, shall be treated as the date of the happening of the accident.

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(5) If the disease has been contracted by a gradual process, so that two or more employers are severally liable to pay compensation in respect thereof under this section, the aggregate amount of compensation recoverable shall not exceed the amount that would have been recoverable if those employers had been a single employer, and in any such case those employers shall, in default of agreement, be entitled as between themselves to such rights of contribution as the court of arbitration thinks just, having regard to the circumstances of the case, in any action brought or application made by any of them for this purpose.

(6) The diseases to which this section applies are anthrax, lead poisoning, mercury poisoning, phosphorus poisoning, arsenic poisoning, pneumoconiosis (as affecting miners only), and any other diseases which are declared by the governor, by order in council gazetted, to be diseases within the operation of this act.

(7) Nothing in this section shall affect the right of any person to recover compensation in respect of a disease to which this section does not apply, if the disease is a personal injury by accident within the meaning of this act.

SEC. 11. (1) This act applies to all accidents happening in New Zealand, but does not apply to accidents happening elsewhere than in New Zealand, except in the cases hereinafter in this section mentioned.

(2) This act applies to accidents happening on board a New Zealand ship, as defined in this section, to any worker in an employment to which this act applies, wherever that ship may be at the time of the accident.

(3) This act applies to accidents which happen to a seaman employed on a New Zealand ship, as defined in this section, in any employment to which this act applies, whether the accident happens in New Zealand or elsewhere, or on board the said ship or elsewhere.

(4) In this act the term "New Zealand ship" means

(a) Any ship which is registered in New Zealand under the Shipping and Seamen Act, 1908:

(b) Any ship which is owned by a body corporate established by the laws of New Zealand, or having its principal office or place of business in New Zealand, or any ship which is in the possession of any such body corporate by virtue of a charter:

(c) Any ship which is owned by any person or body corporate whose chief office or place of business in respect of the management of that ship is in New Zealand, or any ship which is in the possession of any such person or body corporate by virtue of a charter:

(d) Any ship which is owned by the Crown in respect of the Government of New Zealand or which is in the possession of the Crown in that respect by virtue of a charter. (5) For the purposes of this act an accident shall be deemed to happen in New Zealand if it happens in any harbour thereof within the meaning of the Shipping and Seamen Act, 1908, or within the marginal or other waters of New Zealand, and shall be deemed to happen out of New Zealand if it happens elsewhere.

(6) Any sum payable by way of compensation under this act by the owner of a ship shall be paid in full, notwithstanding anything contained in section two hundred and ninety-five of the Shipping and Seamen Act, 1908.

SEC. 12. (1) Save as otherwise expressly provided, this act shall bind the Crown in respect of the Government of New Zealand in the same manner as if the exercise by or on behalf of the Crown of any powers or functions in respect of the Government of New Zealand were the trade or business of the Crown within the meaning of this act. (2) This act does not apply to accidents happening to persons in the naval or military service of the Crown and arising out of their employment in that service, or to accidents happening to persons in the service of the Crown otherwise than in respect of the Government of New Zealand and arising out of their employment in that service. (3) All proceedings against the Crown for or in respect of compensation under this act shall be taken in accordance with the procedure set forth in the Crown Suits Act, 1908, with any modifications of that procedure rendered necessary by the provisions of this act or prescribed by regulations made under this act.

(4) Notwithstanding anything in the Crown Suits Act, 1908, all such proceedings shall be taken in the same court as if the compensation were payable by a private person.

(5) Any sum payable by the Crown by way of compensation under this act may be paid by the authority of any minister of the Crown, and without further appropriation than this act, out of moneys available for the contingent expenses of the department in respect of which the claim arises; and, save as aforesaid, no such sum shall be payable except out of moneys appropriated by Parliament for that purpose.

SEC. 13. (1) In any case where any person (hereinafter referred to as the principal) contracts with any other person (hereinafter referred to as the contractor) for the execution of any work by or under the contractor, and the contractor employs any

worker therein, both the principal and the contractor shall, for the purposes of this act, be deemed to be employers of the worker so employed, and shall be jointly and severally liable to pay any compensation which the contractor if he were the sole employer would be liable to pay under this act.

(2) The principal shall be entitled to be indemnified by the contractor against the principal's liability under this section.

(3) The principal shall not be liable under this section except in cases where the accident happens on, in, or about some land, building, ship, or premises of which the principal has the occupation, possession, or control, or of which some other person is in occupation as the tenant or subtenant of the principal, or on or in which the principal has contract to do the work in connection with which the accident happens. (4) The principal shall not be liable under this section unless one of the following conditions is fulfilled:

(a) The work in which the worker 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 employed at the time of the accident is one of the occupations mentioned in the first schedule hereto, and the contract entered into by the principal is such as to involve a payment by him of not less than twenty pounds [$97.33] for the due and complete performance thereof.

(5) The Crown or a local authority having the control of any road or street shall not by reason of that control be liable under this section to pay compensation in respect of any accident arising out of the use of that road or street by any person for the purposes of a highway.

(6) When the principal and the contractor are jointly and severally liable under this section, judgment recovered against one of them shall not be any bar to an action against the other, except to the extent to which that judgment has been actually satisfied.

(7) When compensation is claimed from or proceedings are taken against the principal, then in the application of this act references to the principal shall be substituted for references to the employer, except that the amount of compensation shall be calculated with reference to the earnings of the worker under the employer by whom he is immediately employed.

(8) In the case of subcontracts the expression "principal" shall include not only the original principal, but also each contractor who constitutes himself a principal with respect to a subcontractor by contracting with him for the execution by him of the whole or any part of the work; and the expression "contractor" shall include not only the original contractor, but also each subcontractor; and each principal's right of indemnity shall include a right against every contractor liable under this section and standing between him and the contractor by whom the worker was employed.

(9) For the purposes of paragraph (a) of this section the expression "trade or business of the principal" shall, when the principal is the Crown or a local authority or body corporate, be read in its ordinary and natural sense, and not in the extended sense indicated in section three and section twelve of this act.

SEC. 14. In assessing compensation, whether under this act or independently hereof, there shall be no abatement of the amount for which the employer or his insurer is liable by reason of the fact that, in consequence of the accident in respect of which the claim has arisen, money has accrued due to the claimant in respect of any life or accident insurance policy effected by himself or by any person other than the employer. SEC. 15. No compensation shall be payable in respect of any accident which is attributable to the serious and wilful misconduct of the worker injured or killed. SEC. 16. No compensation shall be payable in respect of, the death or incapacity of a worker if his death is caused, or if and so far as his incapacity is caused, continued, or aggravated, by an unreasonable refusal to submit to medical treatment, or to any surgical treatment the risk of which is, in the opinion of the court, inconsiderable in view of the seriousness of the injury or disease.

SEC. 17. (1) No compensation shall be payable in respect of the incapacity or death of a worker which is due to disease or personal injury if the worker has at any time in writing signed by him represented to the employer in respect of whose employment the claim to compensation is made that the worker was not suffering or had not previously suffered from the said disease or injury, and if the said representation was false to the knowledge of the worker.

(2) Notwithstanding anything to the contrary in this act, if any worker suffers from or has previously suffered from any disease or personal injury, it shall be lawful for him (whether he is or is not above the age of twenty-one years) to agree in writing with any employer or intended employer that no compensation shall be payable by that employer in respect of the incapacity or death of the worker if his incapacity or death is due to the said disease or injury or to any recurrence or repetition thereof.