119 / 144
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