Lord Buckmaster :-

The question that arises for determination in this case is defined and limited by the summons taken out by the defendants on July 23, 1917 This asks that the plaintiff's claim, a claim brought by an adopted child to recover damages for the death of one John Robin should be reduced to 500 l. upon the ground that his death was caused by the negligence of a fellow servant and that by S. 13 of the Worker's Compensation Amendment Act 1911, "no servant shall be entitled to recover from his employer in respect of the negligence of a fellow servant a larger sum by way of damages than 500 l." Hosking, J., the learned judge before whom the matter first came for hearing dismissed the summons. The appeal to the Court of Appeal of New Zealand was heard by four learned judges. They were equally divided in their opinions. Deniston, J. and Chapman, J., approving the judgment of Hosking, J., while Stout, C.J. and Cooper, J., dissented with the result that the original judgment stood and from that judgment the defendants have brought the present appeal.

The question that arises is a pure question of law and depends upon the construction to be placed upon various Acts of Parliament. The history of the legislation is fully set out in the judgment of Cooper, J. and need not be repeated for it throws no light upon the meaning of the three relevant statutes. The first of these is the Deaths by Accident Compensation Act 1908 (No. 39 of 1908). This Act by S. 3 confers in words almost identical with those of Lord Campbell's Act, a right of action in certain circumstances where the death of a person is caused by the wrongful act, of another. The words of the section are important and they are these

"Where the death of a person is caused by wrongful act, neglect or default, and the act, neglect or default is such as would if death had not ensued have entitled the party injured to maintain an action and recover damages in respect thereof, the person who would have been liable if death had not ensued shall be liable to an action for damages, notwithstanding the death of the person injured".-

Sect. 5 provides that the suit shall be brought in the name of the executor, and adds the provision that the jury may give to the parties respectively for whom and whose benefit the action was brought "such damages as they think proportioned to the injury resulting from the death."

The effect of S. 3 was considered by the Board in the case of British Columbia Electric Ry. Co. v. Gentib (1)The statute in that case was a statute of British Columbia, but it was in the same terms, apart from immaterial differences, with the statute in the present case. The question which then arose for decision was whether a limitation of six months as a period within which any person who was damaged by a certain tramway or the operations of the tramway company could commence an action was applicable as against the father and mother of a man who had been knocked down and killed by one of the trams, and it was held that it was not. The earlier cases which are referred to in the judgments in the Court of Appeal in the present case are carefully examined in the judgment that was then delivered by the Board and the position is summed up in these words. [1914] A. C., 1034,

'This, however does not end the matter, for although the action under Lord Campbell's Act or the Families Compensation Act is not an action of indemnity for negligence, yet nevertheless it is an action which can only exist if certain conditions precedent are fulfilled. The first is that the death shall have been caused by wrongful act, neglect or default of the defendants. That has in this case been affirmed by the verdict of the jury. The second is that the default is such 'as would if death had not ensued have entitled the party injured to maintain an action and recover damages in respect thereof".

This judgment places beyond controversy the law which has been built up by a series of cases of unvarying tendency