Catherine20Lee20Appellant1.docx

1、Catherine20Lee20Appellant1Catherine Lee Appellant; v Lees Air Farming Ltd. Respondents.Judicial Committee11 October 19601960 3 W.L.R. 7581961 A.C. 12Viscount Simonds , Lord Reid , Lord Tucker , Lord Denning and Lord Morris of Borth-Y-Gest. 1960 Oct. 11.On Appeal from the Court of Appeal of New Zeala

2、nd.CompanyDirectorGoverning directorWhether servant of companyAccident while working for company for wagesWhether company liable for compensationWorkerWorkers Compensation Act, 1922 (No. 39) (New Zealand), ss. 2, 3 (1) .Master and ServantCompany directorWhether servant of companyGoverning director e

3、mployed as chief pilot.New ZealandWorkers compensationCompanyAccident to governing director while employed by companyWhether company liable for compensationWorkerWorkers Compensation Act, 1922 (No. 39), ss. 2, 3 (1).Workmens Compensation Governing directorAccident while working for company for wages

4、Liability of company for compensationNew Zealand. *13Section 3 (1) of the Workers Compensation Act, 1922, of New Zealand , provides that if 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, and work

5、er is defined in section 2 as any person who has entered into or works under a contract of service . with an employer . whether remunerated by wages, salary, or otherwise.The appellants husband, who had formed the respondent company for the purpose of carrying on the business of aerial top-dressing,

6、 was the controlling shareholder of the company, and was by its articles of association appointed governing director and employed at a salary as its chief pilot. In his capacity as governing director and controlling shareholder he exercised full and unrestricted control over all the operations of th

7、e company. Pursuant to its statutory obligations the company had insured itself against liability to pay compensation in the case of accident to him. While piloting an aircraft belonging to the company in the course of aerial top-dressing operations the aircraft crashed and he was killed. On a claim

8、 by the appellant against the respondent company for compensation, alleging that at the time of the accident her husband was a worker employed by the respondent company within the meaning of the Workers Compensation Act, 1922 , as amended:-Held, that the deceased was a worker within the meaning of t

9、he Act. His position as sole governing director did not make it impossible for him to be a servant of the company in the capacity of chief pilot, for he and the company were separate and distinct legal entities which could enter, and had entered, into a valid contractual relationship, which was not

10、invalidated by the circumstances that the deceased was sole governing director in whom was vested the full government and control of the company and also the controlling shareholder. They were separate legal entities also so as to enable the company to give orders to the deceased. One person may fun

11、ction in dual capacities, and acting in one capacity give orders to himself in another capacity. The contractual relationship was that of master and servant, and a contract of service was entered into and operated and the deceased was a worker within the statutory definition.Salomon v. Salomon & Co.

12、 1897 A.C. 22; 13 T.L.R. 46, H.L. ; Inland Revenue Commissioners v. Sansom 1921 2 K.B. 492, C.A. ; and Fowler v. Commercial Timber Co. Ltd. 1930 2 K.B. 1, C.A. considered.Brown v. Okiwi Farms Ltd. 1957 N.Z.L.R. 1073 must be regarded as turning on its own facts.Judgment of the Court of Appeal of New

13、Zealand 1959 N.Z.L.R. 393 reversed.APPEAL (No. 18 of 1960), by special leave, from a judgment of the Court of Appeal of New Zealand (December 18, 1958) holding on a case stated by the Compensation Court of New Zealand *14 under the Workers Compensation Rules, 1939 , that on the facts set out in the

14、case the appellants deceased husband could not hold the office of governing director of the respondent company and also be a servant of the company.The following facts are taken from the judgment of the Judicial Committee: The judgment of the Court of Appeal of New Zealand, from which this appeal wa

15、s brought, was given as their opinion upon a case stated by the judge of the Compensation Court. It was provided by rule 5 of Chapter VIII of the Workers Compensation Rules, 1939 , that In any action or other proceeding the court or a judge thereof may state a case for the opinion of the Court of Ap

16、peal on any point of law arising in the action or proceeding. This procedure was adopted by the judge of the Compensation Court in the action which was brought by the appellant in respect of the death of her husband. She claimed 2,430 compensation on behalf of herself and her four infant children an

17、d she also claimed a sum for funeral expenses. The claim was made in reliance upon the provisions of the Workers Compensation Act, 1922, as amended by later statutes. The appellants late husband died in an aircraft accident in Canterbury, New Zealand, on March 5, 1956, while engaged in the capacity

18、of an aircraft pilot in aerial top-dressing operations. The claim of the appellant rested upon her allegation that at the time of his death her husband was a worker in that he was employed by the respondent company. The respondent company denied that the deceased was a worker within the meaning of t

19、he Workers Compensation Act, 1922, and its amendments. It was provided by section 3 (1) of the Act as follows: 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

20、 pay compensation in accordance with provisions of this Act.Under the relevant part of the statutory definition the term worker meant 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,

21、 and whether remunerated by wages, salary, or otherwise. The denial of the respondent company that the deceased was a worker was based on the fact that the deceased was at the time of the accident the controlling shareholder and governing director of the respondent company. In 1954 the deceased had

22、instructed a firm of public accountants in Christchurch to form a company for the purpose of conducting an aerial top-dressing *15 business. On August 5, 1954, Lees Air Farming Limited, the respondent company, was incorporated. The nominal capital of the company was 3,000 divided into three thousand

23、 shares of1 each. The deceased was allotted 2,999 shares; the remaining share according to the memorandum of association was to be taken by a solicitor. The articles of association included the following:32. Subject as hereinafter provided Geoffrey Woodhouse Lee shall be and he is hereby appointed g

24、overning director and subject to the provisions of clause 34 hereof shall hold that office for life and the full government and control of the company shall be vested in him and he may exercise all the powers and authorities and discretions vested in the directors generally and that notwithstanding

25、he is the sole director holding office and he may exercise all the powers of the company which are not by statute required to be exercised by the company in general meeting and any minute entered in the minute book of the companys proceedings signed by the governing director shall, in any matter not

26、 expressly required by statute to be done by the company in general meeting have the effect of a resolution of the company.33. The company shall employ the said Geoffrey Woodhouse Lee as the chief pilot of the company at a salary of 1,500 per annum from the date of incorporation of the company and i

27、n respect of such employment the rules of law applicable to the relationship of master and servant shall apply as between the company and the said Geoffrey Woodhouse Lee.34. The governing director may retire from office upon giving one months notice in writing of his intention so to do, and the offi

28、ce of governing director shall be vacated if the governing director (a) ceases to be a director by virtue of section 148 of the Act; or (b) becomes bankrupt or enters into a composition with his creditors; or (c) becomes prohibited from being a director by reason of any order made under section 216

29、or 268 of the Act; or (d) becomes of unsound mind or becomes a protected person under the Aged and Infirm Persons Protection Act, 1912 ; or (e) becomes incapable of carrying out the duties of a director.35. The governing director may at any time convene general meeting of the company.36. The governi

30、ng director shall not be disqualified by his office from holding any office or place of profit in the company *16 or from contracting with the company whether as vendor, purchaser or otherwise, nor shall any such contract or arrangement or any contract or arrangement entered into by or on behalf of

31、the company in which the governing director shall be interested be avoided nor shall the governing director be liable to account for any profit realised by any such contract or arrangement by reason of the governing director holding such office or of the fiduciary relations thereby established.DIREC

32、TORS37. If and whenever there shall cease to be a governing director the number of directors of the company shall not be more than four or less than two who shall forthwith be appointed or elected by the company in general meeting.38. A director need not hold any share qualification in the capital of the company.43. No director shall be disqualified by his office from holding any office or place of profit under the company or under any company in which this company shall be a shareholder or otherwise interested or from contracting w