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. They show that neither the cause of action nor the measure of damage in an action brought by the dependants of a dead man is identical with that which would have been possessed by the deceased himself. This judgment places beyond controversy the law which has been built up by a series of cases of unvarying tendency. They show that neither the cause of action nor the measure of damage in an action brought by the dependants of a dead man is identical with that which would have been possessed by the deceased himself. It is merely that upon the happening of certain events and the satisfaction of certain conditions a right of action is conferred, and one of the conditions is that the death is caused in such a manner as would have entitled the party injured to maintain an action and recover damages. In the present case, the accident being due to the negligence of a fellow-workman, but for remedial legislation the deceased man could never have maintained such a suit and consequently the condition precedent established by the statute would not have been satisfied. The doctrine of common employment has, however, been removed by certain statutes in New Zealand the first of which is the Worker's Compensation Act of 1908 (No. 248 of 1908). Sect. 62 of that Act is in these terms: "62. (1) When any injury or damage is suffered by a servant by reason of the negligence of a fellow-servant the employer of those servants shall be liable in damages in respect to that injury or damage in the same manner and in the same cases as if those servants had not been engaged in a common employment (2) This section applies to every case in which relation of employer and servant exists, whether the contract of employment is made before or after the commencement of this Act and whether or not the employment is one to which the other provisions of the Act apply (3) No servant shall be entitled to recover from his employer in respect of the negligence of a fellow servant (whether the right of action is conferred by this section or exists independently of the section) a larger sum by way of damages for any one cause of action than five hundred pounds. Nothing in this sub-section shall affect the measure of damages in an action brought against an employer in respect of the death of a servant".- But this section has again been amended by S. 13 of the Workers' Compensation Amendment Act 1911 (No. 34) and this is the statute now operative. Sect. Nothing in this sub-section shall affect the measure of damages in an action brought against an employer in respect of the death of a servant".- But this section has again been amended by S. 13 of the Workers' Compensation Amendment Act 1911 (No. 34) and this is the statute now operative. Sect. 13 is as follows "13 Section sixty-two of the principal Act is hereby amended by repealing sub-section three and substituting the following (3) No servant shall be entitled to recover from his employer in an action brought under this Act in respect of the negligence of a fellow-servant a larger sum by way of damages for any one cause of action than five hundred pounds". The argument based upon these provisions is this. That the express proviso in the original section which exempted from the limitation as to damage an action brought in respect of a dead servant is not repeated, in the amending statute and it must be assumed to have had some definite purpose, and that as it is removed, it must follow that the limitation it was designed to avoid has been once more reimposed. That view found favour with Cooper, J. who stated his opinion in these words "Some effect must be given to this alteration of the law and I am of opinion although not without some doubt that the result is to limit the amount which the personal representatives of a servant or the dependants of a servant can recover in consequence of the death of the servant through the negligence of a fellow servant to the sum of 500 l. the maximum amount which the servants himself could have recovered for the injury sustained by him". With this opinion their Lordships are unable to agree. The mere omission in a later statute of a negative provision contained in an earlier one cannot by itself have the result of effecting a substantive affirmation. It is necessary to see how the law would have stood without the original proviso, and the terms in which the repeated sections are subsequently re-enacted. The real question is whether, with the statute as it now stands, the limitation imposed on the servant is extended to his dependants and succeeds. It is necessary to see how the law would have stood without the original proviso, and the terms in which the repeated sections are subsequently re-enacted. The real question is whether, with the statute as it now stands, the limitation imposed on the servant is extended to his dependants and succeeds. The argument in support of the appellants' case is best put in the assertion that as, without an express statutory relief from the doctrine of common employment no suit could be maintained and such relief being conferred by a section which limits the remedy, the whole of these conditions must be imported into every action to which the doctrine of common employment would have afforded a defence. Their Lordships cannot accept this view. The only operations of the doctrine of common employment in a suit by the dependant of a dead man would be that the conditions precedent were not satisfied. The dead man could not have brought an action in respect of damage or injury. This he can now do. But although in the action that ho might have brought there would have been a limitation as to damage there is nothing to restrict the right expressly conferred by S. 5 of the Deaths by Accident Compensation Act enabling the jury to give damages as they think proportioned to the injury resulting from the death. In forming this opinion their Lordships have the misfortune to differ from Scout, C.J. He regarded the basis of the action as the right of the deceased person to sue. He realised that the damages were independent and that the action was a new and independent action. But it appears from his judgment that he regarded the dependants' right as affected by the infirmity attaching to the rights of the dead man. That, in fact, is the reasoning contained in the following extract from his judgment. "What then is the cause of action given by the Deaths by Accident Compensation Act to the plaintiff? First it is clear that the basis of the action must be the right that the deceased person had to sue, for S. 3 already quoted says that the act neglect or default must if death had not ensued have entitled the party injured to maintain an action and recover damages in respect thereof. First it is clear that the basis of the action must be the right that the deceased person had to sue, for S. 3 already quoted says that the act neglect or default must if death had not ensued have entitled the party injured to maintain an action and recover damages in respect thereof. Now the right that was given to the person who died was a special and limited right - that is, he had only a right to sue for a sum not exceeding 500 l. It is true that a relative could not sue for certain things for which he could sue such as mental suffering see Blake v. Midland Ry. Co. [1852] 18 Q. B. 93, and therefore in one sense the mode of arriving at the damages sustained is different in the two actions. It has however to be remembered that the right of action that the deceased person had was given by the Workers' Compensation Act, it was not a right at common law and the basis of the suit of the present plaintiff is the right of action that the deceased had. The right of action is based on S. 62 which allowed a workman to sue an employer for negligence even though the negligence was the act of a fellow-servant and in giving this new right of action it was expressly provided that the damages could not be more than 500l," This view necessarily involves the conclusion that the dependant's rights are limited by those of the deceased but it does not in their Lordships' opinion afford an accurate exposition of the law. The cause or basis of the action is the death of the workman under certain conditions. It is not his action that is transmitted but a new right of action arising on his death with a consequent measure of damage independent of that by which the deceased would have been limited. Their Lordships see no difference between the restrictions by which the law, apart from statute would have regulated the claim of the work man and the limitation expressly imposed upon those rights by Act of Parliament; yet in the former case it is plain such condition did not affect the dependants for they established a standard inapplicable to their claim. Their Lordships see no difference between the restrictions by which the law, apart from statute would have regulated the claim of the work man and the limitation expressly imposed upon those rights by Act of Parliament; yet in the former case it is plain such condition did not affect the dependants for they established a standard inapplicable to their claim. The damages which the dependants are entitled to recover are such damages as the jury think proportional to the injury, and on this right no statutory limitations have been imposed. The contention that if the workman had in the interval between the injury and his death accepted payment in full as to his claim, the dependants would have been disentitled to sue and that consequently a modification of his claim must also modify their rights is not in their Lordships' opinion sound. The right of the workman to claim is a right which must exist on his death and if by any means that right has been taken away the conditions cannot be satisfied which enabled the dependants to sue. In the present case the right to sue was unimpaired, it was only the damage to be recovered which was controlled. For these reasons their Lordships think that this appeal should be dismissed with costs and the respondent must have her costs in the Court of Appeal. They will humbly advise His Majesty accordingly. Appeal dismissed.