The Gazette 1944-46

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 (1902 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

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,