Young v Bristol Aeroplane Co Ltd

 

Young v Bristol Aeroplane Co Ltd

INDUSTRY: TORTS; Statutory Duty: EMPLOYMENT; Other Employment: CIVIL PROCEDURE

HOUSE OF LORDS

VISCOUNT SIMON, LORD RUSSELL OF KILLOWEN, LORD MACMILLAN, LORD PORTER AND LORD SIMONDS

24, 25, 26, 27 JULY, 29 NOVEMBER 1945

Workmen’s Compensation – Right to sue for breach of statutory duty – Alternative remedies – Election between remedies – Receipt of compensation –

Knowledge of workman – “Option” – When option exercised – Workmen’s Compensation Act, 1925 (c 84), s 29(1).

The appellant, a workman in the respondents’ factory, sustained injuries in the course of his employment owing to the failure of the respondents to fence a

machine. He lost three fingers and was unable to return to work for 6 months. Shortly after the accident the respondents offered him, and he accepted, a

weekly sum of money and he signed receipts for weekly payments made under the Workmen’s Compensation Act, 1925. These sums were paid to him

throughout the period of his unemployment. The appellant then brought an action against the respondents claiming damages for breach of their statutory duty.

It was found as a fact that, although the appellant could not be said to have exercised his option under the Workmen’s Compensation Act, 1925, s 29(1), since

he did not know of his right to elect, nevertheless he had received the payments made to him by the respondents as compensation under the Act. The question

for the determination of the court was whether the appellant, knowing that such payments to him were made by the respondents under the Workmen’s

Compensation Act, 1925, was debarred by virtue of sect 29(1) from taking proceedings independently of the Act for the recovery of damages from the

respondents:—

Held – (i) The Workmen’s Compensation Act, 1925, s 29(1) was not to be regarded as substituted for the civil liability of the employer to the workman who,

although given an option under the section as to which liability he might enforce against his employer, could not pursue together the two remedies by claiming

compensation under the Act and damages independently of the Act. The option, however, was not equivalent to equitable election, since that would make the

exercise of it by the workman dependent not upon what he had done but upon what he knew.

(ii) where, however, the workman accepted some payments under the Act, in ignorance of the option, the alternative remedy available to him was not

lost. But if he persisted in receiving weekly compensation after knowing of the alternative course, he was debarred from changing the nature of his claim.

(iii) on the facts here, the appellant, after he became fully informed of his rights, continued to receive weekly payments from the respondents and had,

therefore, exercised his option for compensation under the Act.

Decision of the Court of Appeal ([1944] 2 All ER 293) affirmed.

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Notes

It is abundantly clear in this case that the workman continued to receive compensation under the Act with knowledge of the choice of remedies given him by

the Workmen’s Compensation Act, 1925, s 29, and the House of Lords accordingly upholds the decision of the Court of Appeal in favour of the employers.

There is however, considerable difference of opinion as to the true construction of sect 29, which may be reduced to this position. Perkins v Hugh Stevenson

and Selwood v Townley Fire Co are based upon the view that a workman who has accepted compensation as such cannot sue for damages even though he did

not know he had an alternative remedy, the latter part of sect 29 operating in favour of the employer independently of the first part. The contrary view,

represented by the reasoning of the Lord Ordinary in Brown v William Hamilton & Co, is that the final part of the section is merely exegetical. Much of the

difficulty appears to arise from confusing the statutory “option” with the equitable right of election. Grave difficulties arise if a workman is required to have

such a knowledge of all the material facts as would be necessary in the case of the equitable doctrine. The matter may be summed up in the words of Lord

Simonds, at p 113 post, that “it is what the appellant did, not what he knew or thought, that matters.”

As to Alternative Remedies, see Halsbury, Hailsham Edn, Vol 34, pp 961–966, paras 1318–1325; and for Cases, see Digest, Vol 34, pp 490–492, Nos

4063–4071. See also Willis’s Workmen’s Compensation, 36th Edn, pp 522–549.

Cases referred to in opinions

Perkins v Stevenson (Hugh) & Sons Ltd [1939] 3 All ER 697, [1940] 1 KB 56, Digest Supp, 109 LJKB 1, 161 LT 149, 32 BWCC 181.

Selwood v Towneley Coal & Fireclay Co Ltd [1939] 4 All ER 34, [1940] 1 KB 180, Digest Supp, 109 LJKB 8, 161 LT 323, 32 BWCC 238.

Brown v William Hamilton & Co Ltd [1944] SLT 282, [1943] Session Notes 82.

Unsworth v Elder Dempster Lines Ltd [1940] 1 All ER 362, [1940] 1 KB 658, Digest Supp, 109 LJKB 305, 162 LT 163, 33 BWCC 1.

Lochgelly Iron & Coal Co Ltd v M’Mullan [1934] AC 1, Digest Supp 102 LJPC 123, 149 LT 526, 26 BWCC 463.

Coe v London & North Eastern Ry, Co [1943] 2 All ER 61, [1943] 1 KB 531, 112 LJKB 497, 168 LT 382.

Lissenden v Bosch (CAV) Ltd [1940] 1 All ER 425, [1940] AC 412, Digest Supp, 109 LJKB 350, 162 LT 195, 33 BWCC 21.

Bennett v Whitehead (L &W) Ltd [1926] 2 KB 380, 34 Digest 492, 4068, 135 LT 329, 19 BWCC 133.

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Cribb v Kynoch Ltd (No 2) [1908] 2 KB 551, 34 Digest 492, 4071, 77 LJKB 1001, 99 LT 216, 1 BWCC 43.

Burton v Chapel Coal Co Ltd [1909] SC 430, 34 Digest 491, k, 46 ScLR 375, [1909] 7 SLT 111, 2 BWCC 120.

Blain v Greenock Foundry Co (1903), 5 F (Ct of Sess) 893.

McDonald v James Dunlop & Co (1905), 7 F (Ct of Sess) 533.

Rouse v Dixon [1904] 2 KB 628, 34 Digest 491, 4066, 73 LJKB 662, 91 LT 436, 6 WCC 44.

Edwards v Godfrey [1899] 2 QB 333, 34 Digest 492, 4072, 68 LJQB 666, 80 LT 672, 1 WCC 32.

Kendall v Hamilton (1879), 4 App Cas 504, 1 Digest 579, 2195, 48 LJQB 705, 41 LT 418.

Mackay v Rosie [1908] SC 174, 1 BWCC 52.

Birch v Pease & Partners Ltd [1941] 1 KB 615, 165 LT 146, 34 BWCC 37, sub nom Pease & Partners Ltd v Birch [1941] 1 All ER 343.

Kinneil Cannel & Coking Coal Co Ltd v Sneddon (or Waddell) [1931] AC 575, Digest Supp, 100 LJPC 113, 145 LT 289, 24 BWCC 181.

Codling v Mowlem (J) & Co Ltd [1914] 3 KB 1055, 34 Digest 491, 4067, 83 LJKB 1727, 111 LT 1086, 7 BWCC 786, affg SC [1914] 2 KB 61.

Appeal

Appeal by the plaintiff, a workman, from a decision of the full Court of Appeal (Lord Greene MR, Scott, Mackinnon, Luxmoore LJJ, Lord Goddard and Du

Parcq LJJ), dated 28 July 1944, reported ([1944] 2 All ER 293), affirming a decision of the commissioner of assize, given at Lancaster on 30 November 1943,

dismissing the action brought by the workman against his employers for damages for breach of their statutory duty. The facts are fully set out in the opinions

of Viscount Simon, Lord Russell of Killowen and Lord Porter.

Gilbert J Paull KC and Henry Burton for the appellant.

F A Sellers KC and W Matabele Davies for the respondents.

Their Lordships took time for consideration

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29 November 1945. The following opinions were delivered.

VISCOUNT SIMON. My Lords, this is the appeal of the plaintiff, in an action brought for damages at common law against his employers, the respondents,

for failure to fence dangerous machinery. The appeal is from a unanimous decision of the Court of Appeal which was specially constituted to hear the

plaintiff’s appeal from the judgment given against him by the commissioner at the Manchester Assizes. Besides Lord Greene MR who delivered the

considered judgment of the whole court, Scott, Mackinnon, Luxmoore, Goddard and Du Parcq LJJ, were parties to the decision. One of the conclusions

reached in the judgment of Lord Greene MR is that if the Court of Appeal, when sitting in one of its Divisions, has in a previous case pronounced on a point of

law which necessarily covers a later case coming before the court, the previous decision must be followed (unless, of course, it was given per incuriam, or

unless the House of Lords has in the meantime decided that the law is otherwise), and that this application of the rules governing the use of precedents binds

the full Court of Appeal no less than a division of the court as usually constituted. Thus, the previous decisions of the Court of Appeal in Perkins v Hugh

Stevenson & Sons Ltd and Selwood v Townley Coal and Fireclay Co, upon the correctness of which the respondents rely, but which the appellant challenges,

could not be overruled in that court; and since these decisions were held to apply to the present case in a sense adverse to the appellant, his appeal was

necessarily dismissed.

The present appeal, therefore, is in substance a submission that the decisions in Perkins’s case and Selwood’s case are wrong, or, at any rate, that they are

not conclusive against the appellant’s claim. The question involves the interpretation and application of the Workmen’s Compensation Act, 1925, s 29(1)—a

section which is in the same form as sect 1(2)(b) of the 1896 Act, and one which has given rise to many difficulties and to a multitude of decisions. Sect 29(1)

runs as follows:

‘When the injury was caused by the personal negligence or wilful act of the employer or of some person for whose act or default the employer is

responsible, nothing in this Act shall affect any civil liability of the employer, but in that case the workman may, at his option, either claim

compensation under this Act or take proceedings independently of this Act; but the employer shall not be liable to pay compensation for injury to a

workman by accident arising out of and in the course of the employment both independently of and also under this Act, and shall not be liable to any

proceedings independently of this Act, except in case of such personal negligence or wilful act as aforesaid.’

Before proceeding further, it is necessary to set out the essential facts in the present case. On 3 April 1942, the appellant lost three fingers of his left hand

by amputation while operating a guillotine sheet-metal cutter in the respondents’ factory. It is not in dispute that this accident arose out of and in the course of

his employment in such circumstances as to create a liability in the respondents to pay compensation for his injury under sect 1 of the 1925 Act. On 30 April

1942, the appellant attended at the respondents’ works and received from one Howarth, whose duty it was to attend, on the respondents’ behalf, to payments

under the Workmen’s Compensation Act, the sum of £6 15s, which amount is equal to the compensation under the Act due to the appellant for the first four

weeks. Thereafter, the appellant attended at the works and was paid by Howarth, week after week, the sum of £1 15s until the following October. On each

occasion there was put before him a pay-sheet which plainly showed that these were payments under the Workmen’s Compensation Act, and how they were

calculated. On each occasion the appellant signed the pay-sheet “for payment received.” The commissioner of assize found that the appellant read the form

and understood it, and accepted these payments knowing them to be made as compensation under the Act, though he did not in the first instance “make a claim

for compensation ‘as such’.”

In the course of making and receiving these weekly payments, namely, on 24 July 1942 (and apparently after the respondents had been prosecuted and

convicted for failing to fence the machinery which had injured the appellant) the appellant’s solicitor wrote on his behalf claiming “compensation under the

Workmen’s Compensation Act and, alternatively, claiming damages.” The respondents replied admitting liability under the Act only, and pointed out that the

appellant “has been in receipt of compensation since his cessation 􀂭 100􀀉 of work following the injuries.” Notwithstanding this correspondence in July, the

appellant continued to draw his weekly compensation and the commissioner found (a) that the appellant between the time of the accident and July “did not

know that he had a right under sect 29(1) of the Workmen’s Compensation Act to elect as between two alternative remedies,” and (b) inferentially, that he “did

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know after 24 July but nevertheless went on drawing his compensation money.” Consequently, the commissioner, following Perkins’s case, felt constrained to

hold that the option to use independently of the Act had gone.

In Perkins’s case, the injured workman had actually applied to his employers for compensation under the Act and was paid weekly sums accordingly for

about a year, after which no further compensation was due as he had recovered from his injuries. About two months after the accident, however, his solicitor

had written referring to his alternative claim apart from the Act and attempted unsuccessfully to secure that the weekly payments should be regarded as being

made without prejudice to the alternative claim. The Court of Appeal held that this alternative claim was barred, because from the date of the solicitor’s letter

the workman must be regarded as having material for exercising his “option” and as having exercised it; the employer had already been made liable under the

Act and had paid in full all that the Act prescribed and could not therefore, be also liable independently of the Act. It is true that in the course of his judgment

Sir Wilfrid Greene MR, expressed the view ([1939] 3 All ER 697, at p 703) that:

‘… where the employer, in response to a claim under the Act, has made a payment of compensation under the Act, that payment discharges once

and for ever, in whole or pro tanto, the statutory liability under the Act… ’

Finlay LJ, appears to agree with him. But this view is not essential to the decision, and Sir Wilfrid Greene MR, goes on to point out that in that case the

workman has in fact exercised his option. The actual decision can be supported by reason of that circumstance, apart from the fact that the workman had

claimed and received compensation without knowledge that another remedy was available to him if he chose to adopt it.

In Selwood’s case, the workman had made no application for compensation but he had received a number of weekly sums from his employers which

were, as he knew, payments under the Act. Later, and while still gravely incapacitated, he refused, on the advice of his solicitor, to accept any more weekly

payments and subsequently brought an action at common law against his employers for damages for personal injuries. The Court of Appeal held that the

principle of Perkins’s case applied: he could not succeed in his action, according to the Court of Appeal, because, if he did, his employers would be paying

both under the Act and independently of the Act. One difficulty I feel about this latter decision is that it involves the conclusion that if an injured workman

receives one single weekly payment, knowing it is tendered as compensation under the Act, he loses all chance of suing successfully at common law. On this

view, he takes the first payment, even though he has never asked for it, at his peril. The employers have paid for one week “under this Act” and are liable to

pay it, and, therefore, it is suggested, they cannot thenceforth be liable to any proceedings by the workman “independently of this Act.” It is to be observed

that in Selwood’s case there is no trace of a suggestion that the workman had effectively exercised an “option”: the decision turned on nothing else than that

one or more weekly payments had been offered and accepted.

Having regard to the general scheme of the Act and to its obvious purpose of preserving remedies apart from the Act if the workman chose to avail

himself of the alternative, I cannot accept this view. Perkins’s case, on its actual facts, seems to me to be correctly decided: there the workman, by persisting

in receiving weekly compensation as long as his injury lasted, although he long before had appreciated that the law offered him an alternative remedy, must be

regarded as having effectively exercised “his option.” But, with all respect to the members of the Court of Appeal in Selwood’s case, which was decided three

months later, I do not agree that this decision necessarily followed from the principle laid down in Perkins’s case, and I think that the decision in Selwood’s

case was wrong. The Lord Ordinary (Patrick) in Brown v William Hamilton & Co develops the view ([1944] SLT 282, 􀂭 101􀀉 at p 286), which I would

uphold, with much clearness and cogency. I think that the Scotch authorities quoted by Lord Patrick are right in treating the final part of sect 29 (“but the

employer … ”) as exegetical of the preceding part (“but in that case the workman may, at his option … ”) and not as further restricting by an added condition

the workman’s right of option. As the Lord Ordinary (Patrick) points out, and as was also laid down by Lord Goddard in the Court of Appeal in Unsworth v

Elder Dempster, no difficulty in adopting this construction arises from the rule that the employer is not to be bound to pay twice over. If, before the workman

can be regarded as having really exercised his option, he receives one or more weekly payments under the Act, and he then opts to issue a writ and recovers

damages, the damages in the action would be reduced by the amounts already received. This view secures what Sir Wilfrid Greene MR, in Perkins’s case,

described as the effect of the final words ([1939] 3 All ER 697, at p 703), namely, that “the employer is not to be made to pay twice over to the same person.”

I cannot agree that the deduction from damages of a sum already paid in respect of the same injury is contrary to any “principle of law” (ibid, at p 704). On

the contrary, I would adopt the statement of the Lord Ordinary (Patrick), ([1944] SLT 282, at p 286) that:

‘When the workman sues at common law, if the sum awarded in the name of damages exceeds the sums already paid to him in the name of

workmen’s compensation, these sums will form a good set-off or will have to be taken into account in diminution of damages.’

In the present case, I agree that the appeal must be dismissed on the ground that the appellant, who knew of his “option” in July, nevertheless continued

to draw weekly compensation until the following October, and must consequently have deliberately and consciously chosen to claim compensation under the

Act, instead of proceeding independently of the Act.

As the House has heard a full discussion of the difficulties of construction arising under sect 29, I venture to add the following observations as

representing my view of the general effect of the clause:

(1) The statutory provisions for workmen’s compensation are not to be understood as substituted for remedies against his employer previously available

to the workman injured by the personal negligence or wilful act of the employer or of those for whom the employer is responsible. One of the remedies so

preserved is a right of action based upon breach of a statutory duty: see Lochgelly Iron Co v McMullan, especially per Lord Atkin ([1934] AC 1, at p 9). The

previous remedies remain available as an alternative for the cases which they cover.

(2) But the two remedies are not to be pursued together. For a workman to issue a writ for damages independently of the Act and also to “claim”

compensation under the Act is forbidden. This prohibition of double procees applies to the initiation and carrying on of proceedings whether either or both of

them would ultimately succeed or not. It is presumably inserted for the protection of the employer, so that he shall not be vexed with both demands

concurrently. The protection so given him could in proper cases be secured by stay or injunction.

(3) There thus being an option between two kinds of proceedings, who is to have the right to exercise the option? The employer cannot insist on being

called on to pay by one process rather than by the other. It is the workman who opts. It is “his” option. This option is not equivalent to equitable election and

I deprecate the use of the latter word as a substitute for the word in the section. If “election,” in the full sense, were meant, it would be necessary for the

workman to know all that was material to determine his choice. Scott LJ, is perfectly logical, in Coe v London and North Eastern Ry. Co, in saying ([1943] 2

All ER 61, at p 64), that if “option” means “election” there can be no effective exercise of option “without full knowledge of all material facts affecting his

choice.” But this, in my opinion, is not the meaning of “option” in this connection. “Election” has two meanings, as Viscount Maugham pointed out in

Lissenden v CAV Bosch, Ltd, when he said ([1940] 1 All ER 425, at p 429):

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‘… the equitable doctrine of election has no connection with the common law principle which puts a man to his election (to give a few instances

only) whether he 􀂭 102􀀉 will affirm a contract induced by fraud or avoid it, whether he will in certain cases waive a tort and claim as in contract, or

whether, in a case of wrongful conversion, he will waive the tort and precover the proceeds in an action for money had and received. These cases

mainly relate to alternative remedies in a court of justice. The history of the common law rules, the principles which apply to them, and the effect of the

election are all very different from those which prevail where the equitable principle is in question.’

See also Lord Atkin’s speech ([1940] 1 All ER 425, at p 436).

Here we are dealing with a statutory “option”, in its setting in the section, and I am willing to adopt the view, which has constantly been expressed and

enforced, that the workman does not lose his alternative remedy merely because he accepts some payments under the Act, when the option is unknown to him.

But if the circumstances amount to this, that he persists in taking weekly compensation after knowing of the alternative course, he is debarred from changing

the nature of his claim. This view, in my opinion, is confirmed by the exegetical character of the prohibition against double liability.

In conclusion, I would venture to express the hope that, if there is to be new statutory enactment on the subject of alternative remedies when workmen

meet with industrial accident, the legislation will be so framed as to get rid of the doubts and difficulties which have led to so much controversy, and have

given rise to such fine distinctions, in the interpretation and application of sect 29.

My Lords, I move that the appeal be dismissed, with costs.

LORD RUSSELL OF KILLOWEN [read by Lord Porter]. My Lords, the question debated on this appeal, while it admits of easy statement, is difficult of

solution. The question is whether the appellant workman having accepted from his employers (the respondents) payments of compensation under the

Workmen’s Compensation Act, 1925, knowing them to be payments under that Act, is debarred by reason of sect 29(1) of that Act from taking proceedings

independently of that Act for the recovery of damages from his employers. Sect 29(1) of the Act runs thus:

‘When the injury was caused by the personal negligence or wilful act of the employer or of some person for whose act or default the employer is

responsible, nothing in this Act shall affect any civil liability of the employer, but in that case the workman may, at his option, either claim

compensation under this Act or take proceedings independently of this Act; but the employer shall not be liable to pay compensation for injury to a

workman by accident arising out of and in the course of the employement both independently of and also under this Act, and shall not be liable to any

proceedings independently of this Act, except in case of such personal negligence or wilful act as aforesaid.’

The relevant dates are these: The accident occurred on 3 April 1942; the appellant received payment of the appropriate compensation (viz, £1 15s a

week) until he returned to work on 2 October 1942; on 5 February 1943, he issued the writ in the present litigation, claiming damages for negligence and

breach of statutory duty. The only defence upon which the respondents now rely is sect 29(1) of the Act.

The commissioner who tried the action at the Manchester Assizes, found the following facts: (i) that on and after 30 April 1942, the appellant accepted

the weekly payments knowing them to be made as compensation under the Act; (ii) that the appellant when he began to receive those payments did not know

“that he had a right under sect 29(1) of the Workmen’s Compensation Act to elect as between two alternative remedies”; and (iii) that in or about July, 1942,

he did become aware of that right. The commissioner, on the finding first above-mentioned, felt bound to dismiss the action in view of two authorities in the

Court of Appeal, viz, Perkins v Hugh Stevenson & Sons, Ltd and Selwood v Townley Coal & Fireclay Co, which may, I think, be accurately described as

having decided that a workman who has knowingly accepted as such payments of compensation under the Act, is precluded from recovering compensation

independently of the Act.

My Lords, let me say at once, that in my opinion the present appeal must fail whatever view be taken as to the correctness of the decisions of the Court of

Appeal, or the true interpretation of sect 29(1). The appellant here knew in July, 1942, of the choice given to him by the subsection, and with that knowledge

chose to continue in receipt of compensation under the Act until he returned to work. Having thus, in exercise of the option given to him 􀂭 103􀀉 by the

subsection, enforced to the full one liability of the employer, he cannot enforce any other; in other words, having in exercise of his option, enforced to the full

the employer’s liability to pay compensation under the Act, he cannot take proceedings to make the employer pay compensation independently of the Act. He

has deliberately selected and exhausted one of the two rights which the subsection offers for his choice.

In view, however, of the course taken by the debate before your Lordships, I may be permitted to state my views upon the true construction of the

subsection. It contains four provisions to the following effect:

(1) The civil liability of the employer is not affected by the Act when the injury was caused by the personal negligence or wilful act therein described.

(2) If the injury was so caused the workman is given a choice as to which liability he will seek to enforce.

(3) The employer is not to have to pay compensation to the workman both independently of the Act and under its provisions.

(4) No action may be brought against the employer in respect of an injury to a workman by accident arising out of or in the course of his employment,

unless the injury was caused by the personal negligence or wilful default as aforesaid.

The subsection only applies when the injury was caused by the personal negligence or wilful default described in the opening words, but when it applies,

it operates for the benefit of both the workman and the employer. On the one hand the first provision preserves to the workman the civil liability of the

employer, and the second provision gives him a choice between enforcing that liability and enforcing the liability imposed on the employer by the Act. On the

other hand, the third provision protects the employer from being obliged to meet both liabilities. The fourth provision may for the present purpose be

disregarded. The second and third provisions are the ones which create the difficulty.

The Court of Appeal has treated the third provision as an enactment in favour of the employer which operates independently of the first and second

provisions, and which in some way detracts from or qualifies the express saving in favour of the workman of the civil liability of the employer. It has

construed the subsection as meaning that once some compensation for injury to a workman has been paid under the Act, and has been accepted by him as such,

the employer is freed from all liability to pay compensation independently of the Act. My Lords, I find myself unable so to construe the third provision. It is

a construction which, in my opinion, should only be adopted if none other is open, because it destroys to a great extent the primary object of the subsection,

viz, the preservation in favour of the workman of the employer’s civil liability. So long as in the long run an employer is not made to pay more than his total

liability under the particular head of liability which the workman, knowing of his choice, chooses to enforce, the protection given to the employer by the third

provision will be secured to him. He will not have paid two sets of compensation, but only the compensation payable under his liability independently of or

under the Act as the case may be.

For myself I would construe the subsection as follows: The object of the subsection is to keep the civil liability of the employer alive, and it gives the

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workman a choice as to what liability he will enforce against the employer. But to make a choice the workman must be aware of his right to choose, and of

the alternatives open to his choice. In the case of a workman who, owing to ignorance in these repects, has been unable to exercise his option under the

subsection, but who has been paid and has accepted compensation under the Act, even to the full amount, I cannot see how he can be prevented, on

discovering his right to choose, from recovering compensation independently of the Act, if he be not barred by lapse of time.

On the other hand, if a workman, who knows of his right to choose and of the alternatives open to his choice, has enforced his claim to compensation

independently of or under the Act, he cannot thereafter seek to enforce any other liability of the employer. By the words “has enforced his claim,” I mean that

he has obtained a judgment for damages at common law or compensation under the Employers Liability Act, 1880, or that he has obtained an award or an

agreement for recording under sect 23 of the 1925 Act, determining 􀂭 104􀀉 the employer’s liability under the Act. When the workman has so made his choice

of the liability which he desires to enforce, and has so enforced it, the subsection has been worked out, and the chapter is closed. But unless and until he has

so enforced the liability of his choice, I find nothing in the subsection to prevent him from changing his mind, abandoning any pending proceedings in

reference to one liability, and commencing proceedings to enforce the other liability.

In coming to this conclusion I find myself in substantial agreement with the views expressed by the Lord Ordinary (Patrick) in Brown v William Hamilton

& Co Ltd, although I do not think that the rights of the workman under the subsection are (as is indicated or suggested in many authorities) to be judged in the

light of the strict rules applicable to the equitable doctrine of election. As I have said, the primary object of the section is to preserve the civil liability of the

employer, making it plain on the one hand that it is the workman who may choose which liability shall be enforced against the employer, and on the other

hand that the employer cannot be made to pay more than the measure of his liability independently of, or under, the Act as the case may be. The Lord

Ordinary (Patrick) has pointed out the harsh results and the difficulties which would ensue if a workman is to be held to be deprived of his rights against the

employer which are independent of the Act, by the mere acceptance as such of compensation paid under the Act. I need not repeat them, but they appear to

me very real; and while no suggestion is or could be made against the employers in the present case, it is obvious that instances might arise in which, upon the

construction of the subsection adopted by the Court of Appeal, very grave injustice might be inflicted on a workman by his employer.

As already indicated, however, this appeal must, in my opinion, fail.

LORD MACMILLAN [read by LORD SIMONDS]. My Lords, on the facts of the present case I have no doubt that the decision of the Court of Appeal was

right in law. But as certain views on the proper interpretation of the Workmen’s Compensation Act, 1925, s 29, are implied in that decision and as the

opportunity has been taken of bringing under review the many and varying judicial expositions of this much-debated enactment, I agree with your Lordships

that the House ought to pronounce on the matter generally.

The remedy of compensation which the Act provides for accidents to workmen arising out of and in the course of their employment is expressly declared

to be exclusive of all other remedies except in the single case of the accident having been caused by the employer’s personal negligence or wilful act. In that

case, but in the case only, the injured workman is given an option; he may either claim compensation under the Act or take proceedings independently of the

Act under the pre-existing law. One thing at least is clear on the terms of the enactment: the injured workman is not entitled to make claims against his

employer simultaneously for compensation under the Act and for damages independently of the Act. The remedies are mutually exclusive.

The option given to the workman is no doubt important and valuable, but it should not be overlooked that the Legislature in fixing the scale of statutory

compensation must be taken to have regarded it as affording in the normal case fair and adequate compensation for the injury sustained, which physically is

the same whether the accident was due to the employer’s personal negligence or not. The reluctance manifested in some of the cases to hold that the workman

has exercised his option in favour of the statutory compensation and the ingenuity exhibited in avoiding such a decision would seem to suggest that this

consideration has not always been borne in mind.

The main controversy has centred round the question of what in law is to be held as committing the workman irrevocably to one or other of the two

courses open to him when he has sustained an accident arising out of and in the course of his employment which has been caused by his employer’s personal

negligence or wilful act, the only case in which the statute gives him an option.

The problem has in my opinion been confused by the importation of the refinements of the equitable doctrine of election. It has been said that in giving

the workman an option between two courses the statute has put him to his “election”; an “election” to be valid and irrevocable can only be made 􀂭 105􀀉

where there is on the part of the workman knowledge of the alternatives and full information as to the advantages and disadvantages of deciding to adopt the

one or the other. Consequently the workman cannot be held to have exercised his option and to have committed himself irrevocably to the one or the other

remedy unless he was possessed of such knowledge and information. The result of this argument is to make the determination of the question whether the

workman has irrevocably exercised his option dependent not upon what he has done but upon what he knew. In my view this is an erroneous approach to the

matter. Carried to its logical conclusion the argument would entitle a workman who for years had received compensation under the Act from his employer,

either by agreement or under an award, to turn round and institute proceedings for damages independently of the Act on the plea that he did not know, when he

claimed and accepted or was awarded compensation under the Act, that he had any right to redress outside the Act. If he could prove that this was so, then he

must be held never to have exercised his statutory option, never to have made an “election.” Similarly, on this argument, if the workman had intimated a

claim of damages outside the Act and obtained from his employer, with or without proceedings in court, a sum in full satisfaction of his claim, he could

nevertheless throw over the settlement and have recourse to a claim for compensation under the Act if he could show that he had not been aware of his rights

under the Act when he made the settlement. Such an interpretation of the enactment would, in my opinion, be clearly contrary both to its letter and to its

spirit. In one case the Act permits a locus poenitentae. If the workman exercises his option by bringing an action to recover damages independently of the Act

and fails in that action, he may move the court to assess and award him compensation under the Act, if otherwise entitled to it, subject to deduction of the costs

caused to his employer by his unsuccessful action. There is no parallel provision in the case of an unsuccessful claim under the Act. The inference is clear

that the workman cannot try his luck first under the Act and then, if unsuccessful, independently of the Act or vice versa, apart from the single special

concession which I have just mentioned.

It would be a singular situation if the employer could have no assurance that finality had been reached in settling a claim either under or independently of

the Act unless he had taken steps to satisfy himself of the state of the workman’s mind and that the workman had made a fully informed “election” between

the alternative courses open to him. It would be grotesque to suggest that the employer to whom a claim under the Act has been made must ask the workman

if he has considered the possibility of bringing an action against him for personal negligence or wilful fault, lest otherwise any settlement of the claim under

the Act might have no finality because there had been no “election” on the part of the workman. The workman, like any other citizen, must be presumed to

know the rights which the statute has given him, and must be judged according to what he does in the exercise of these rights and not according to the extent

of his knowledge of them. I quote and adopt the words of Scrutton LJ, in Bennett v L &W Whitehead Ltd ([1926] 2 KB 380, at p 405):

‘If by statute you have an option to do A or B, but not both, and you have done A, it does not seem to me relevant to say “I have done A, but I have

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not elected to do it.“’

If one of the alternatives is adopted the other is excluded, no matter what failure there has been to appreciate the respective merits of the one or the other.

But this, unfortunately, is far from ending the matter. It still remains to consider what steps taken by the workman must be held in law to be evidence of

an irrevocable exercise of his statutory option. This has proved a highly controversial point, as the diversity of judicial opinions shows. It is best elucidated

by discussing the possible cases. I begin with the easiest case, on which there appears to be general agreement. If the workmen’s claim either under or outside

the Act is contested and he institutes proceedings which are carried through to their conclusion and result in an award of compensation under the Act or in a

judgment for damages outside the Act, all are apparently now agreed that finality has been reached. The workman cannot be heard to say that in proceeding in

the one way or the other he was unaware of his rights and had never truly exercised his option.

But what if the workman fails in the proceedings which he has taken? Is he entitled then to resort to the alternative proceedings which he might have

􀂭 106􀀉 taken but did not take? The answer in my opinion is in the negative. I quote and adopt the words of Cozens-Hardy MR, in Cribb v Kynoch Ltd (No 2)

([1908] 2 KB 551, at p 555):

‘… I think that the true meaning of the Act is that a workman cannot proceed to trial under the Act and fail, and then proceed by common law

action, and also cannot proceed by common law action and, having failed in that action, then proceed under the Act… ’

subject, of course, to the special right accorded under subsect (2) of sect 29. The workman by persisting to a conclusion in the proceedings which he has taken

has irrevocably committed himself. He cannot be heard to say that he has exercised his opinion only conditionally on success. This view was emphatically

approved in Scotland by a court of seven judges in Burton v Chapel Coal Co Ltd. But in that case a qualification was admitted, based on the Scottish

decisions in Blain v Greenock Foundry Co and McDonald v James Dunlop & Co, and the English case of Rouse v Dixon. If the reason of the workman’s

failure to recover compensation in proceedings under the Act was that his case did not fall within the Act, then, it was said, he was not barred from proceeding

outside the Act. The ground for this view, as stated in Burton’s case by Lord Low ([1909] SC 430, at p 441), is that the enactments were:

‘… intended to meet the case of a workman who has, in fact, an option between a claim under the Act and a claim independently of the Act, and,

therefore, have no application to the case of a workman who does not fall within the purview of the Act and has no title to claim compensation under it.’

I do not accept this qualification. In contested claims for compensation the employer’s most frequent answer, apart from questions of quantum, is that the

claim does not fall within the Act because the accident did not arise out of or in the course of the employment. If the employer succeeds in this plea he is

nevertheless, if the qualification is well-founded, to be exposed to entirely new proceedings outside the Act. This is, in my opinion, contrary to the true

interpretation of the Act. I agree with Scrutton LJ, that if the workman’s case fails it makes no “difference whether the applicant fails because he is not, or

fails although he is, a ‘workman’ or ‘dependent’ within the Act” (Bennett’s case ([1926] 2 KB 380, at p 403)). If the workman takes proceedings under the

Act and carries them to a conclusion, then he has exhausted his rights, notwithstanding that the conclusion may be that his case does not fall within the Act, for

example, because the accident did not arise out of or in the course of his employment. He cannot be heard to say that he has exercised his option only

conditionally on his case being held to fall within the Act. The proceedings are under the Act none the less that the result of the proceedings may be that the

workman’s case is held not to come within it “… Proceedings carried to a final determination are conclusive evidence of a final election” (per Bankes LJ, in

Bennett’s case, ibid, at p 391).

Next, what if the workman, having instituted proceedings either under or outside the Act, withdraws from them before a decision is reached? As the law

stands, under the authority of Bennett’s case, notwithstanding the vigorous dissent by Scrutton LJ, the workman is not held to have irrevocably committed

himself by the initiation of proceedings from which he has resiled. Bankes LJ, who was in the majority, seems nevertheless to have thought that it was a

question of circumstances and that a workman might in some circumstances be held to have irrevocably committed himself by taking proceedings not

persisted in to a conclusion. This leaves the law in an unsatisfactory state. It has been suggested that there are two and only two rival constructions of sect 29:

(i) that it protects the employer from being proceeded against more than once; (ii) that it protects him only from being made to pay more than once. But this

clean-cut choice of interpretations has not been accepted or logically applied. The mere intimation of a claim for compensation, although a step in

proceedings, has not been held to be an irrevocable exercise of the workman’s option. The hardship of so holding has moved the courts not to do so, though

on a strict and literal reading of the section it looks very much as if this was intended, and Scrutton LJ so thought. Suppose a workman makes a claim on his

employer under the Act—it may be quite informal and need not even be in writing—and the employer declines to admit it, pointing out that he has an

irrefutable 􀂭 107􀀉 answer to it, the validity of which the workman at once recognises. Is the workman by having made this abortive claim finally precluded

from resorting to an action of damages for which he may have an excellent prima facie case? Similarly if the workman has issued a writ in an action of

damages and on seeing the defence at once recognises that he has no case, must he go on with the action to its inevitable conclusion against him in order to

obtain a “determination” that the injury is one for which the employer is not liable and so enable himself to obtain compensation under subsect (2) of sect 29

less the cost of the action? While I have thus indicated the sort of considerations involved I am not disposed in the present case, in which the point does not

arise, to express a concluded opinion upon it. It may never have to be decided by this House, in view of the general revision of the law of workmen’s

compensation which the Government has announced that it has in contemplation.

I pass now to consider the position where there have been no proceedings either by way of arbitration under the Act or by way of action independently of

the Act. If the injured workman intimates a claim against his employer on the ground of the employer’s personal negligence or wilful act and the employer

admits liability and settles with the workman by payment of an agreed sum, in such a case I think there can be no question that the workman must be held to

have exercised his option irrevocably. If on the other hand the workman intimates a claim under the Act and the employer admits liability and proceeds to

make to the workman the payments due under the Act, I equally see no reason why the workman should not be held to have exercised his option irrevocably.

The Act contemplates that in the normal case claims will be settled by agreement without resort to proceedings, and the vast majority of cases are so settled. I

cannot see any good reason for holding that finality is reached where as a result of proceedings in a contested case there has been a determination of the matter

in favour of or against the workman, but that where a contest has been avoided by agreement the workman should be entitled to maintain that he has never

exercised his option. An agreement can under the Act be rendered as enforceable as an award after proceedings. It is, of course, essential that there be a real

agreement between the parties for the payment and acceptance of compensation under the Act. But where there is sufficient evidence of such an agreement I

do not think that it is open to the workman to challenge it on the ground that he has never exercised his option because he did not know that he might have

brought an action against his employer for damages or had not information to enable him to weigh the comparative advantages of claiming under the Act and

claiming independently of the Act. An agreement under the Act need not be in writing. It may be oral or inferred from the facts and circumstances. It does

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not seem to me to make any difference whether the agreement results from a claim by the workman admitted by the employer or from an offer by the

employer accepted by the workman or from the conduct of the parties. What is essential is that the agreement should be an agreement under the Act; that is to

say, that the parties should understand that they are transacting about the right to compensation which the Act confers. And, of course, it must be a real

agreement; it must not be vitiated by mutual error, fraud, undue influence or any of the other grounds on which the validity of an agreement may be assailed.

A fortiori of there has been not only agreement under the Act but payments under the Act on the faith of the agreement, the evidence of the workman having

finally exercised his option is conclusive. Further, the acceptance by the workman of payments expressly made under the Act and accepted by him as such is

sufficient evidence of the agreement of the parties and of the workman having irrevocably committed himself.

In the present case the appellant workman did not take advice as to the course he should adopt, although the respondent’s representative was so fair as to

inquire of him whether he intended to take advice before committing himself, and he was not proved to have known that he had any rights independently of

the Act. But week after week he accepted payments made to him expressly under the Act and received by him as such. That being so, I agree with Lord

Greene MR that the case is covered by the decisions of the Court of Appeal in Perkins v Hugh Stevenson & Sons Ltd, and Selwood v Townley Coal & Fireclay

Co, in which it was held that:

‘… a workman who has been paid compensation under the Act, which he has 􀂭 108􀀉 knowingly accepted as such compensation, is thereby

precluded from recovering damages from his employers at common law.’

I am of opinion that these cases were decided rightly and in consonance with a sound interpretation of the Act. Consequently, while I appreciate I cannot

accept the views expressed by the Lord Ordinary (Patrick) in Brown v William Hamilton & Co Ltd, to which the attention of the House was specially drawn on

behalf of the appellant.

The appeal should, in my opinion, be dismissed and the judgment of the Court of Appeal be affirmed.

LORD PORTER. My Lords, this case raises again a question which has many times been before the courts of this country. The facts are short. On 3 April

1942, the appellant met with an accident arising out of and in the course of his employment. About three weeks after the accident he saw, at the respondents’

works, one Howarth, assistant to their commercial manager. Howarth’s duty was to deal with payments under the Workmen’s Compensation Act, and he saw

about fifteen to twenty men on days specially appointed for that purpose. He told the appellant that no authority had yet come from the respondents’ insurance

company to make any payment, and asked the appellant whether, in view of the seriousness of his injury, he would seek advice, and probably mentioned his

trade union. The appellant next visited Howarth on 30 April and on that occasion Howarth passed over the pay-sheet for the appellant to read, and explained

that though only 24 days’ compensation was then due, he proposed to pay up to the end of the fourth week. The appellant read and understood the form,

which plainly showed that it dealt with weekly payments under the Workmen’s Compensation Acts. He then filled in the form and signed the appropriate

receipt. Thereafter the appellant continued to draw compensation and to accept payments of workman’s compensation knowing it to be such until he returned

to work on 2 October.

Meanwhile, on 24 July his solicitor wrote to the respondents stating that he desired to claim compensation under the Workmen’s Compensation Act and

alternatively damages. To this letter the respondents’ insurance company replied on 19 August that liability was only admitted under the Act, and that the

appellant had been in receipt of compensation under it since his cessation of work following his injuries. After some further communications between the

parties a writ was issued on 5 February 1943, claiming damages for negligence and breach of statutory duty. Meanwhile the appellant continued to receive

and to accept compensation under the Act, and no notice was given or assertion made that the receipt was without prejudice to the bringing of a claim for

damages.

The final finding of the commissioner is as follows. I quote his words:

‘I am satisfied … that the plaintiff did not make a claim for compensation as such … The plaintiff, as I find, received the payments made to him as

compensation under the Workmen’s Compensation Act and the payments were paid to him as such. I also find that at the time this workman received

his first payment on Apr. 30, 1942, and until such time as he consulted his solicitor … he did not know that he had a right under sect. 29(1), of the

Workmen’s Compensation Act to elect as between two alternative remedies. It follows that the workman, not knowing of the existence of his right to

elect, could not be said to have exercised the option given to him by the subsection.’

In the action the substantial defences were that the appellant was guilty of contributory negligence and that in any event, having claimed and received

compensation under the Workmen’s Compensation Act, he was debarred from recovering damages. The judge negatived the former of these two defences,

but, whilst making the findings set out above, felt himself bound by authority to hold that the latter must succeed. This defence is the creature of statute and

depends upon the construction to be placed on the Workmen’s Compensation Act, 1925, s 29(1), which is in the following terms:

‘When the injury was caused by the personal negligence or wilful act of the employer or of some person for whose act or default the employer is

responsible, nothing in this Act shall affect any civil liability of the employer, but in that case the workman may, at his option, either claim

compensation under this Act or take proceedings independently of this Act; but the employer shall not be liable to pay compensation for injury to a

workman by accident arising out of and in the course of the employment both 􀂭 109􀀉 independently of and also under this Act, and shall not be liable

to any proceedings independently of this Act, except in case of such personal negligence or wilful act as aforesaid.’

The wording is not very artistic, but the aim is, I think, clear enough, viz, to leave the workman his choice of two remedies whilst preventing the employer

from having to pay both damages and compensation.

Apart from authority, I should have thought it reasonably plain that whereas the workman can choose which of his two types of remedy he would pursue,

he cannot recover both damages and compensation, and at some time or other he must reach the position when he is bound to the one and debarred from the

other. Your Lordships have to determine when and by what means that position is reached. The appellant maintained that the choice continues until the

workman can be said to have exercised the option which the Act gives him. The true construction of the subsection was, he said, to be found by reading the

second part as exegetical or explantory of the first, ie, by interpreting it as meaning that the workman might at his option pursue either remedy, provided that

by doing so he did not ultimately impose a liability upon his employer to pay both damages and compensation. In his contention, that point would not be

reached unless either a judgment had been obtained in his favour in a claim for damages or an award made in his favour or an agreement for compensation

registered. In support of this agreement he cited the observation of Kennedy J, in Rouse v Dixon ([1904] 2 KB 621, at p 634):

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‘It is not impossible to construe sect. 1(2) [the corresponding section in the 1897 Act] as meaning that the option may be exercised unless and until a

claim has proceeded to a decision …’

The respondent, on the other hand, urged that the two parts of the subsection were to be read separately; that the choice made by the workman was

irrevocable if he received workmen’s compensation as such, and in any case that, as the Court of Appeal has held, the acceptance of either damages or

compensation as such was a bar to recovery under the alternative remedy.

Even though the respondent’s argument be, as I think it is, unsound, yet in the present case I can have no doubt but that, after his solicitor’s letter of 4

August the appellant knew that he could claim damages and with this knowledge continued to accept compensation. Up till then in my view he might have

withdrawn his claim under the Act, but after that time he was confined to the remedy of which he continued to take advantage. Conversely, if he had brought

an action knowing what he did and failed, he could not thereafter have applied for workmen’s compensation were it not for the terms of sect 29(2), which

expressly make provision for his contingency: see Edwards v Godfrey, and Cribb v Kynoch. The general principle is founded on Lord Blackburn’s dictum in

Kendall v Hamilton ([1879] 4 App Cas 504, at p 542): “… There cannot be an election without knowledge of the right to elect.” It finds support in Rouse v

Dixon, Bennett v Whitehead, and Unsworth v Elder Dempster, and is not inconsistent with Burton v Chapel Coal Co, where it was decided that a workman

cannot sue for damages after failure to recover under the Act in a case where he has brought his action with full knowledge of the alternative remedy.

Moreover, Mackay v Rosie, and Birch v Pease & Partners, are not antagonistic in deciding that acts may be evidence of choice. Whether the workman has

chosen is a matter of fact, but the effect of his knowledge or ignorance that he has alternative remedies is a matter of law.

In so far as Perkins v Hugh Stevenson, and Selwood v Townley Fire Co depart from these principles and decide that the mere acceptance of compensation

as such, but in ignorance of the existence of an alternative remedy, is a fatal bar to a claim for damages, I think they are wrong. I prefer the reasoning of the

Lord Ordinary (Patrick) in Brown v William Hamilton & Co, where he reviews the Scotch cases and refuses to follow the two last-mentioned English cases. I

should be content to follow his conclusion and reasoning, but as the matter has been fully argued I think I ought to give the grounds for my preference.

In the English cases, as I understand them, the Court of Appeal construed sect 29(1) as divisible into two parts. Under the first they acknowledged the

existence of the workman’s option, at any rate unless and until he accepted 􀂭 110􀀉 compensation under the Act as such, but under the second they held that a

workman who had claimed and received compensation or had accepted compensation as such had precluded himself from suing for damages even though he

did not know that he had an alternative remedy; it was enough that he knew he was receiving workman’s compensation as such. The Court of Appeal, as I

understand them, in so holding, relied solely upon the second half of the subsection and thought it unnecessary to have regard to the earlier part which gave the

workman a choice. The mere payment and receipt of compensation was said to free the employer from the alternative liability, inasmuch as to expose him to

such a claim would be to render him liable to pay twice over.

So long as it was thought that, if compensation was paid, there was no method of recovering what had been so paid or of setting it off against any

damages afterwards awarded, there was force in this argument (see Perkins’s case and Selwood’s case), but once it was acknowledged, as it was in Unsworth v

Elder Dempster, that this view was mistaken and that any compensation previously paid could be deducted from damages when awarded, the argument loses

its efficacy. In a case where this course is adopted the employer does not pay twice nor has his liability to pay been finally determined.

In my view, unless the dispute has reached the stage at which the employer is at least compellable to pay, either by judgment in an action or by award or

registered agreement under the Act, he cannot be said to be liable to pay within the wording of the subsection. Even a failure at law or the dismissal of a claim

for compensation would not be enough; there must be some binding decision under which the employer is liable to pay. The provisions of this part of the

subsection are a defence against a legal liability to pay twice, not a method of ascertaining whether the workman has or has not made an irrevocable choice.

But a choice has to be made under the first part of the subsection and must at some time become irrevocable. When does this occur? I can find no

answer, except that it comes when the workman is fully aware of the alternatives and deliberately makes his choice between them. He must not only know

that he has claimed, or is offered or is receiving workman’s compensation as such, he must also know that he has an alternative remedy.

The opinion I have been expressing is, I think, in accordance with the view of your Lordships’ House, as expressed in Kinneil Cannel & Coking Coal Co

Ltd v Waddell. In Codling v John Mowlem & Co Ltd Atkin J, as he then was, had said ([1914] 2 KB 61, at p 69), that the provisions referred to in the latter

part of the section give to the employer the right, independent of the exercise by anyone of the option, not to pay twice over, and further that this would be the

result although payment under the statute was made without the knowledge and consent of the plaintiff who was seeking to enforce common law rights. Lord

Buckmaster did not agree, and Viscount Dunedin said ([1931] AC 575, at p 584):

‘What I think the section means to say, and what involves no absurdity, is that no individual is to get two payments, one at common law and the

other under the Act.’

If the workman, knowing of the alternative, makes his choice, I should regard the option as exercised. But if he had not this knowledge, a claim for

damages which either was not brought to a conclusion, or if brought to a conclusion failed, need not be a final election. Even judgment in favour of the

workman would not of itself necessarily be a final choice, but it would bar a claim under the Act because the employer, being thereby liable to pay

independently of the Act, could not be made liable to pay under it; the wording of the second half of the subsection would protect him.

For the same reason an award or registered agreement under the Act would likewise protect the employer. But short of such a conclusion I do not see

why the workman should not withdraw from one claim and proceed in the other, always provided he has not deliberately chosen the one or the other with full

knowledge that the alternative is open to him.

In the present case I think the appellant did make such a choice, and I would for that, but that reason alone, dismiss the appeal.

LORD SIMONDS. My Lords, I concur in the motion that this appeal, the facts of which I need not rehearse, should be dismissed and will add only some

observations upon the meaning and effect of the Workmen’s Compensation 􀂭 111􀀉 Act, 1925, s 29, which, having caused so much controversy in the English,

Scotch and Irish Courts is now, I hope, to be replaced by a provision more easily intelligible. The section in question is, I suppose, introduced for the benefit

of both the employer and the workman. The Workmen’s Compensation Acts provided a new remedy for an injured workman but they could not be read so as

to take away from him an existing right at common law in the absence of a provision to that effect. Yet it was clearly unfair to the employer that in respect of

the same act or omission he should be doubly liable: therefore some provision against that event had to be made. It was made by sect 29 of the 1925 Act as

similar provision had been made by the earlier Acts: the question for your Lordships’ consideration is, what does the section mean?

My Lords, there are, I think, two separate questions involved. The first is, what is meant by saying that the workman may at his option do one of two

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things? Having done one of those two things is he debarred from doing the other of them, only if (as some would say) he knew that he had a choice, or (as

others would say) he both knew that he had a choice and was aware of all the facts relevant to the making of the particular choice? Or having done one of

those two things, is he, whatever his state of mind may have been, altogether debarred from doing the other of them upon the footing that his act proclaims his

choice? The second question is, what act or acts amount to claiming compensation under the Act or taking proceedings independently of it, as the case may

be, so that after such acts the workman is debarred from his other remedy? That is a question that arises whatever answer may be given to the first question.

Upon the first question I respectfully concur in what has been said by Lord Macmillan, whose opinion I have had the advantage of reading. I agree in

thinking that much confusion has arisen from importing into the consideration of this section the niceties of the equitable doctrine of election. I do not

understand how a workman, being given the statutory choice between what I will, for brevity, call claim and action, can make his claim and later say: “I will

now bring my action, for when I made my claim I was unaware that I could bring an action.” It is not clear to me whether the contention that he can do so is

based solely on the words “at his option” which are found in the section. I do not think that it is logical that it should. For without those words the section

gives the choice: “the workman may … claim compensation … or take proceedings … ,” and if where there is a choice, an act, however unequivocal, is not

decisive unless the actor is aware of his rights, the words “at his option” and nothing.

In Bennett v L & W Whitehead Ltd Scrutton LJ said ([1926] 2 KB 380, at p 404):

‘I do not think you can escape the statutory prohibition against doing a thing by saying that, though you have done it, you have not elected to do it.’

This expresses my own view with admirable terseness. If the statute says that a man may do one of two things, that involves that he may not do both. If he

does one of them he cannot escape by saying: “I did not choose or elect to do it.” He has done it. Res ipsa locuta est. If it is said that this gives no meaning

to the words “at his option,” I should be inclined to agree, but in any event they are superfluous since he, who has the choice, has also the option. The value of

the words, as it appears to me, lies in this, that they make doubly clear, what was already clear enough, that it is for the workman not the employer to say

which remedy shall be pursued. But that does not mean that, when the workman has pursued one remedy, he can deny that it was his choice.

My Lords, in coming to this conclusion upon what I conceive to be the first question, I am assisted by a consideration of the difficulties, overwhelming as

they appear to me to be, if the alternative view is accepted, viz, that, whatever a workman may have done, he is not debarred from his alternative remedy

unless he has made a conscious choice between the two remedies. It is significant that, as I pointed out earlier in this opinion, it is not agreed amongst those

who adopt this view, what degree of knowledge is sufficient to make the choice effective. On the one hand it is said that there must be knowledge that there is

a right to choose: no more apparently is needed. On the other hand it is said—and I will take the latest statement of this kind from the judgment in Coe v L &

NE Ry Co, of Scott LJ ([1943] 2 All ER 61, at p 64): “that 􀂭 112􀀉 option is beyond doubt a legal right of election; and no election can be exercised by the

elector without full knowledge of all material facts affecting his choice.” In this view there must be knowledge not only of the possibility of choice in general

but of all the material facts affecting the particular choice. If indeed it is relevant to ascertain the state of the workman’s mind, when he makes his claim or

brings his action, the latter view appears to me more consistent and logical, for it is of little use to the workman to know in general that he has a choice unless

he knows also all the facts which should guide him in making it. The theory postulates that the workman is instructed before he acts. I see no justification for

stopping half-way and saying that it is sufficient for him to know that he has a choice and that it does not matter how much or how little he knows of the facts

relevant to that choice.

But, my Lords, if the view so expressed by Scott LJ is the right one, the practical difficulties are grave indeed. There are no doubt regions of the law in

which it is necessary to enquire into the state of a man’s mind. But the inquiry must always be a difficult one, not lightly to be undertaken. Here “all material

facts affecting his choice” must include the very facts which can perhaps only be ascertained upon a judicial determination of his claim or action, and, even

when they have been ascertained, there may be nice questions as to their bearing upon such problems as the doctrines of contributory negligence or volenti non

fit injuria introduce. It would appear that the workman can make no fully instructed choice until he has been taught by failure or success in the claim or action

that he has made or brought, and that it is only after that that any act on his part is final or irrevocable. If so, it is strange that it should have been thought

necessary in a certain event and subject to certain conditions to preserve to him his alternative remedy, viz, to permit him, if he brings his action and fails in it,

to ask the court to assess and award him compensation under the Act.

My Lords, I would say, expanding what I venture to think was in the mind of Scrutton LJ, in Bennett v Whitehead (L &W Ltd), that this is but an example

of the fundamental proposition that a man intends the natural consequences of his acts. He is judged by what he does, not by what he thinks. Given

alternative rights against his employer he exercises one of them: the employer for whose benefit has been introduced the limitation of alternative remedy, is

bound neither to enlighten him nor to enquire into his state of mind. He is entitled to assume that that which the workman has done, he has intended to do, that

he has “at his option” made his claim or brought his action, as the case may be. I think, with deference to those who think or have thought otherwise, that Lord

Blackburn’s dictum in Kendall v Hamilton ([1879] 4 AC 504, at p 542), that there cannot be an election without knowledge of the right to elect (a dictum

uttered in a widely different context) does not assist your Lordships in the construction of this section.

Answering the first question that I have posed by saying that it is what the appellant did, not what he knew or thought, that matters, I turn to the second

question and ask whether he so acted that he was debarred from taking proceedings independently of the Act. Upon this question I understand that no doubt is

entertained by your Lordships that, however much the simple words, “claim compensation under this Act,” where they occur in this section, may be expanded

or refined, however liberally the section may be construed in favour of the workman, the present appellant so acted and, if it be material, continued so to act

with knowledge of his rights, as to debar him from his alternative remedy of action. Under those circumstances, fully concurring in the conclusion, I do not

think it necessary to consider the widely divergent views that have been held upon this subject. But I would safeguard myself in any future consideration of

the matter, if it should come again before this House, by saying that I am far from satisfied that a somewhat strained and unnatural meaning has not been

placed upon simple words. It is clear, I think, what the words “take proceedings independently of this Act” mean. That is one remedy open to the workman.

The other remedy is to “claim compensation under this Act.” If it becomes material, I should wish to consider how far it is legitimate to construe these plain

words as importing anything more than a demand for compensation as of right, which I understand to be the natural and primary meaning of “claim.” Nor

should I, unless constrained by authority, 􀂭 113􀀉 be prepared without further consideration to accept the view that it is only against an ultimate double

liability that the section protects the employer. That it has that result is certainly true, but as at present advised I do not see why it does not further protect him

from proceedings independently of the Act if a claim for compensation under the Act has been already made. That is what the section seems in clear language

to say. It may be thought desirable to give a greater latitude to the workman in the pursuit of his alternative remedies. That is a matter for the Legislature. I

am for my part unable by judicial interpretation of the section in its present form to achieve that result.

The appeal should, in my opinion, be dismissed.

Appeal dismissed with costs.

All England Law Reports 1936 - books on screen™

All ER 1946 Volume 1

Preamble

Solicitors: W H Thompson (for the appellant); Gregory, Rowcliffe & Co agents for John Taylor & Co, Manchester (for the respondents).

C StJ Nicholson Esq Barrister.

[1946] 1 All ER 114