The Gazette 1944-46

dismissed the claim on the ground that the plain tiff before beginning the action had already re ceived compensation under the Workmen's Com pensation Act, 1925, in respect of the accident, which arose out of and in the course of his employ ment, and that he was therefore barred from recovering in the action damages for the same accident. The Commissioner considered that he was bound by the decisions of the Court of Appeal in Perkins v. Hugh Stevenson and Sons, Limited (55 The Times L.R. 1,000 ; [1940] 1 K.B. 56) and Selwood v. Townley Coal and Fireclay Company Limited (56 The Times L.R. 6 ; [1940] 1 K.B. 180) to find against the plaintiff. The plaintiff's appeal to the Court of Appeal having been dismissed, he appealed to the House of Lords. Mr. Gilbert J. Paull, K.C., and Mr. Henry Burton for the appellants ; Mr. F. A. Sellers, K.C., and Mr. Matabelc Davies for the respondents. JUDGMENT. LORD SIMON, in the course of his opinion, said that the appeal was, in substance, a submission that the decisions in. Perkins's case (supra) and Selwood's case (supra) were wrong, or, at any rate, that they were not conclusive against the appel lant's claim. The question involved the inter pretation and application of section 29 (1) of the Workmen's Compensation Act, which stated :— 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. On April 30, 1942, the appellant attended at the respondent's works and received from the res pondents' representative, as payments under the Workmen's Compensation Act, the sum of £6 15s., which amount was equal to the compensa tion under the Act due to the appellant for the first four weeks. Thereafter he attended at the works and was paid week after week the sum of £l 15s. till the following October. On each occasion

there was put before him a pay-sheet which plainly showed that those were payments under the Workmen's Compensation Act, and how they were calculated. On each occasion the appellant signed the pay-sheet "for payments received." The Commissioner found that the appellant read the form and understood it, and accepted those payments knowing them to be made as com pensation under the Act, though he did not in the first instance "make a claim for compensation 'as such.' " On July 24, 1942, the appellant's solicitor wrote on his behalf claiming "compensation under the Workmen's Compensation Act and, alternatively, claiming damages." The respondents replied ad mitting liability under the Act only, and pointed out that the appellant, "has been in receipt of compensation since his cessation of work following the injuries." Notwithstanding that correspon dence 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 section 29 (1) of the Workmen's Compensation Act to elect as between two alternative remedies, and (b), infereiitially, that he did know after July 24, but nevertheless went on drawing his compensation money." His LORDSHIP referred to the facts of Perkins's case (supra) and Selwood's case (supra), and said that one difficulty which he felt about the latter decision was that it involved the conclusion that, if an injured workman received one single weekly payment, knowing it was tendered as compensa tion under the Act, he lost all chance of suing successfully at common law. On that view, he took the first payment, even though he had never asked -for it, at his peril; the employers had paid for one week "under this Act" and were liable to pay it. and therefore, it was suggested, they could not thenceforth be liable to any proceedings by the workman "independently of this Act." In Selwood's case (supra) there was 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 pay ments 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, he (Lord Simon) could not accept that view. Perkins's case (supra), on its actual facts, seemed to him to be correctly decided. But, with all respect to the members of the Court of Appeal in Selwood's case (supra), 71