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1914 Supreme(SC) 40
Privy Council
Sir George Farwell, Sumner , Parker of Waddington, Moulton, Justice Lords Dunedin, JJ.
British Columbia Electric Railway Company Limited -Appellant
Versus
Violet Gentile -Resopndent
On Appeal from the Court of Appeal of British Columbia
Decided On : 16-06-1914
Chappie , Armitage, Brown, Linklater , Addison, M. Macnaghten, E.P. Davis , Branson, Macnaghten, Clauson
An action under the Families Compensation Act creates a new, distinct cause of action rather than transferring the deceased's right to the representative; therefore, it is not an action for indemnity and is not subject to limitation periods applicable to indemnity suits.
Headnote:(A) Consolidated Railway Act - Section 60 - Families Compensation Act - Limitation period for actions for indemnity - Suit brought by representatives of a deceased person - Whether a statutory action for compensation for death constitutes an action for indemnity for damage sustained by the plaintiff - Held: An action under the Families Compensation Act creates a totally new right of action, based on different principles than a claim for indemnity for injury sustained by the plaintiff - Such an action is not barred by a limitation period applicable specifically to indemnity suits for damages sustained by reason of railway operations.
(B) Families Compensation Act - Nature of cause of action - The Act does not transfer the right of action of the deceased to the representative but gives the representative a new cause of action - This action is new in species, quality, and principle.
(C) Condition Precedent - For an action under the Families Compensation Act to arise, the deceased must have been in a position to successfully maintain an action at the moment of death - If the deceased had already been compensated or had covenanted away rights, the action would not arise.
Facts of the case:
A person was killed by a tramway car. An action was brought by the administratrix on behalf of the parents under the Families Compensation Act. The defendants pleaded that the action was barred as it was not commenced within six months of the death, pursuant to a statutory limitation period for indemnity actions related to railway operations.
Findings of Court:
The action brought under the Families Compensation Act is not a suit for indemnity for damage or injury sustained by the plaintiff and therefore the six-month limitation period under the railway act does not apply.
Issues: Whether a suit raised under the Families Compensation Act falls within the description of a suit for "indemnity for damages sustained by reason of the railway or the operations of the company" and is thus subject to a six-month limitation period.
Ratio Decidendi: The court held that the Families Compensation Act creates a new and distinct cause of action rather than transferring the deceased's right to the representative. Since the action is not for indemnity for damage sustained by the plaintiff, the specific limitation period for indemnity actions is inapplicable. The right to sue exists provided the deceased could have maintained an action at the moment of death.
Result: Appeal dismissed.
Legal Category Hierarchy
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tort
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negligence
- fatal accidents
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negligence
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practice and procedure
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limitation of actions
- statutory limitation periods
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limitation of actions
Lord Dunedin :—
The appellants are a company working the tramways in the streets of the city of Vancouver. This they do as assignees of the Consolidated Railway Company incorporated by Chapter 55 of the Acts of British Columbia, 1896 . The respondent is the administratrix of Vernon Aldrich, deceased, who was struck and killed by one of the appellants' cars on 7th October, 1911.
The respondent raised action on behalf of the father and mother of the deceased on 10th June, 1912, in virtue of the provisions of the Families Compensation Act, Chapter 82 of the Revised Statutes of British Columbia . In the statement of claim the plaintiff averred that the death of Vernon Aldrich was caused by the negligence of the servants of the defendants.
The defendants denied negligence and joined issue on the fact. They also pleaded that the action was barred, not having been commenced within six months of the death of the deceased. This plea they rested on the terms of Section 60 of the Consolidated Railway Act , which is in the following terms :-
"All actions or suits for indemnity for any damage or injury sustained by reason of the tramway or railway, or the works or operations of the company shall be commenced within six months next after the time when such supposed damage is sustained, or, if there is continuance of damage, within six months next after the doing or committing of such damage ceases, and not afterwards, and the defendant may plead the general issue, and give this Act and the special matter in evidence at any trial to be had thereupon, and may prove that the same was done in pursuance of and by authority of this Act."
The case came before a jury. The learned Judge repelled the plea founded upon Section 60 and the jury found a verdict for the plaintiff and assessed damages at $ 3,000, which sum the Judge then directed should be paid, $ 2,000 to the father and $ 1,000 to the mother of the deceased man.
The defendants appealed to the Court of Appeal, repeating their plea founded on Section 60 , and further contending that the verdict was contrary to evidence. The Court of Appeal affirmed the judgment of the Court below, but granted leave to appeal to this Board. The question of the verdict being contrary to the evidence was not argued before, and would not have been entertained by their Lordships. The whole question is, therefore, whether the action was barred as being raised too late.
To get the benefit of the limitation expressed in Section 60 , the appellants must shew that the present suit is one for "indemnity for damages sustained by reason of the railway or the operations of the company." Indemnity obviously means indemnity to the plaintiff in the suit, in respect of wrong done to the plaintiff and damages sustained by him owing to the railway or the operations of the company. Their Lordships assume without deciding that the words "operations of the company" include negligent driving of a car.
The question therefore comes to turn on whether a suit raised in virtue of the provisions of the Families Compensation Act answers to the description above set forth.
The Families Compensation Act is for all practical purposes textually the same as the Act known as Lord Campbell's Act in the United Kingdom, of which Act it is indeed a copy. Now the character of the right given by Lord Campbell's Act has been the subject of much judicial decision. As early as 1852, in the case of Blake v. Midland Railway Company 18 Q. B. 93, Coleridge, J., giving the judgment of the Court, said :
"But it will be evident that this Act does not transfer this right of action (of the deceased) to his representative, but gives to the representative a totally new right of action, on different principles."
Then in the case of Pym v. Great Northern Railway Company 4 B and S. 396. Erle, C. J., said :
"The statute as appears to me gives to the personal representative a cause of action beyond that which the deceased would have if he had survived, and based on a d
