120 / 144
which was decided three months later, he did not
agree that that decision necessarily followed from
the principle laid down in Perkins's ease, and he
thought that the decision in Selwood's case was
wrong. Lord Patrick in Brown v. William Hamil
ton and Co. ([1944] S.L.T. 282, atp. 286) developed,
with much clearness and cogency, the view which
he (Lord Simon) would uphold.
He would adopt Lord Patrick's statement 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 work
men's compensation, these sums will form a good
set-off or will have to be taken into account in
diminution of damage."
In the present case, he agreed that the appeal
must be dismissed on the ground that the appel
lant, who knew of his "option" in July, neverthe
less continued to draw weekly compensation till
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 section
29, he ventured to add the following observations
as representing his view of its general effect:—
1. The statutory provisions for workmen's
compensation were 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
was responsible. The previous remedies re
mained available as an alternative for the cases
which they covered.
2. But the two remedies were 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
was forbidden. That prohibition of double
process applied to the initiation and carrying
on of proceedings whether either or both of
them would ultimately succeed or not. It was
presumably inserted for the protection of the
employer, so that he should 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 was to have the
right to exercise the option? The employer
could not insist on being called on to pay "by
one process rather than by the other. It was the
workman who opted. It was his "option." That
option was not equivalent to equitable election,
and he deprecated the vise 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.
Here the House was dealing with a statutory
"option" in its setting in the section, and he
was willing to adopt the view, which had con
stantly been expressed and enforced, that the
workman did not lose his alternative remedy
merely because he accepted some payments under
the Act,
when the option was unknown to him.
But if the circumstances amounted to this, that
he persisted in taking weekly compensation after
knowing of the alternative course, he was de
barred from changing the nature of his claim.
That view was confirmed by the exegetical charac
ter of the prohibition against double liability.
He moved that the appeal be dismissed.
The other noble and learned LORDS delivered
opinions in which they agreed that the appeal
should be dismissed.
Solicitors :—Mr. W. H. Thompson; Messrs.
Gregory, Rowcliffc, and Co., for Messrs. John
Taylor and Co., Manchester.
N.B.—
Section 29 (1) of the English Workmen's
Compensation Act, 1925, is similar in terms to
section 2 (1) (/;) of the Workmen's Compensation
Act, 1906, and section 60 (1) and (2) of the Work
men's Compensation Act, 1934. In reading the
above report it should be noted that the second
general observation of Lord Simon, on the subject
of the simultaneous pursuance by a workman of
alternate remedies is a statement of the law in
England which has not been followed by the
Supreme Court. See Becklev v. Scott (19
02 2 I.E.
504) and Irish Sugar Co. v. Flymi (1930 64 I.L.T.ll.
73).
COURT OF APPEAL
NOTICE TO QUIT " ON OR BEFORE" NAMED
DATE
: CONSTRUCTION
DAGGER v. SHEPHERD
Before
LORD
JUSTICE
SCOTT, LORD
JUSTICE
TUCKER,
and
MR. JUSTICE EVERSHED.
The COURT allowed the appeal by Mrs. Winifred
Ada Mary Dagger from a decision of Judge Cave,
K.C., given at Poole County Court. In the action
Mrs. Dagger claimed possession of a house called
Kenwood at Wimborne, Dorset, from Mr. Frank
Alfred Shepherd.
Mrs. Dagger's case was that the house was
occupied by Mr. Shepherd under the terms of
an agreement of March 25. 1939, which was duly
determined by a notice to quit dated December
72