United Kingdom House of Lords Decisions

     Nov. 29. 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. That court was specially constituted to hear the appellant's appeal from the judgment given against him by Mr. Commissioner Laski K.C., at Manchester Assizes. Besides Lord Greene M.R., who delivered the considered judgment of the whole court, Scott, MacKinnon, Luxmoore, Goddard and du Parcq L.JJ. were parties to the decision. One of the conclusions reached in the judgment of the Master of the Rolls, with which I agree, 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. High Stevenson & Sons, Ld. [1940] 1 KB 56 and Selwood v. Townley Coal & Fireclay Co., Ld. [1940] 1 KB 180 , 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' case [1940] 1 KB 56 and Selwood's case [1940] 1 KB 180 are wrong, or at any rate that they are not conclusive against the appellant's claim. The question involves the interpretation and application of s. 29, sub-s. 1, of the Workmen's Compensation Act — a section which is in the same form as s. 1, sub-s. 2 (a) of the original Act of 1896 and one which has given rise to many difficulties and to a multitude of decisions. [His Lordship read the sub-section and continued:]

     In Perkins' case [1940] 1 KB 56 , 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 the Master of the Rolls expressed the view [1940] 1 KB 56, 66 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,” and Finlay L.J. appears to agree with him. But this view is not essential to the decision, and the Master of the Rolls goes on to point out that in that case the workman had 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 [1940] 1 KB 180 , 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' case [1940] 1 KB 56, 66 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 [1940] 1 KB 180 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' case [1940] 1 KB 56 , 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 [1940] 1 KB 180 , which was decided three months later, I do not agree that this decision necessarily followed from the principle laid down in Perkins' case [1940] 1 KB 56 , and I think that the decision in Selwood's case [1940] 1 KB 180 was wrong. Lord Patrick in Brown v. William Hamilton & Co. 1944 SL T 282, 286; 37 BW CC Supp 52, 63, 84 develops the view which I would uphold with much clearness and cogency. I think that the Scotch authorities quoted by Lord Patrick 1944 SL T 282, 285; 37 BW CC Supp 52, 60 are right in treating the final part of s. 29 (“but the employer,” etc.), as exegetical of the preceding part (“but in that case the workman may, at his option,” etc.), and not as further restricting by an added condition the workman's right of option. As Lord Patrick points out, and as was also laid down by the present Lord Goddard in the Court of Appeal in Unsworth v. Elder Dempster Lines, Ld. [1940] 1 KB 658, 674 , 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 Lord Greene M.R. in Perkins' case [1940] 1 KB 56, 65 , described as the effect of the final words, 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 67 . On the contrary, I would adopt Lord Patrick's statement that “when the workman sues at common law, if the sum awarded in name of damages exceeds the sums already paid to him in 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” 1944 SL T 282, 286; 37 BW CC Supp 52, 64 . 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 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 s. 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: Lochgelly Iron & Coal Co., Ld. v. M'Mullan [1934] AC 1, 9 ; see especially per Lord Atkin.) 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 process 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 L.J. is perfectly logical, in Coe v. London and North Eastern Ry. Co. [1943] KB 531, 540 , in saying 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 connexion. “Election” has two meanings, as Viscount Maugham pointed out in Lissenden v. C.A.V. Bosch, Ld. [1940] AC 412, 418 when he said: “The equitable doctrine of election has no connexion with the common law principle which puts a man to his election (to give a few instances only) whether he 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 recover 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 that 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 Ibid 429 . 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 s. 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 s. 29, sub-s. 1, of that Act from taking proceedings independently of that Act for the recovery of damages from his employers. [His Lordship stated the sub-section and continued:]

     The relevant dates are these:— The accident occurred on April 3, 1942; the appellant received payment of the appropriate compensation (viz. 1l. 15s. a week) until he returned to work on October 2, 1942; on February 5, 1943, he issued the writ in the present litigation, claiming damages for negligence and breach of statutory duty. The only defence on which the respondents now rely is s. 29, sub-s. 1, of the Act. Mr. Commissioner Laski, who tried the action at the Manchester Assizes, found the following facts:— (1.) that on and after April 30, 1942, the appellant accepted the weekly payments knowing them to be made as compensation under the Act; (2.) that the appellant when he began to receive those payments did not know “that he had a right under s. 29, sub-s. 1, of the Workmen's Compensation Act to elect as between two alternative remedies”; and (3.) that in or about July, 1942, he did become aware of that right. The learned Commissioner, on the finding first above-mentioned, felt bound to dismiss the action in view of two authorities in the Court of Appeal, namely, Perkins v. Hugh Stevenson & Sons, Ld. [1940] 1 KB 56 and Selwood v. Townley Coal & Fireclay Co., Ld. [1940] 1 KB 180 , 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 s. 29, sub-s. 1. The appellant knew in July, 1942, of the choice given to him by the sub-section, 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 by the sub-section, 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 sub-section 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 sub-section. 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 sub-section 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 sub-section 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 sub-section, namely, 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 sub-section as follows:— The object of the sub-section is to keep the civil liability of the employer alive, and it gives the 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 respects, has been unable to exercise his option under the sub-section, 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 s. 23 of the Act, determining 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 sub-section 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 sub-section 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 Lord Patrick in the case of Brown v. William Hamilton & Co., 1944 SL T 282; 37 BW CC Supp 52 , 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. Lord 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, on 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 s. 29 of the Workmen's Compensation Act, 1925, 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 that 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 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 poenitentiæ. 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 L.J.: “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 not elected to do it’.” (Bennett v. L. & W. Whitehead, Ld. [1926] 2 KB 380, 405 . 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 workman'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 taken but did not take? The answer in my opinion is in the negative. I quote and adopt the words of Cozens-Hardy M.R. in Cribb v. Kynoch, Ld. (No. 2) [1908] 2 KB 551, 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 sub-s. 2 of s. 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 option only conditionally on success. This view was emphatically approved in Scotland by a court of seven judges in the case of Burton v. Chapel Coal Co., Ld. 1909 SC 430; 2 BW CC 120 . But in that case a qualification was admitted, based on the Scottish decisions in Blain v. Greenock Foundry Co. (1903) 5 F 893 and M'Donald v. James Dunlop & Co., (1909), Ld. (1905) 7 F 533 , and the English case of Rouse v. Dixon [1904] 2 KB 628 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 by Lord Low in Burton's case 1909 SC 430, 441, 442 , 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 L.J. 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 ‘dependant’ within the Act” (Bennett's case [1926] 2 KB 380, 385 ). 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 determination are conclusive evidence of a final election” (per Bankes L.J. in Bennett's case Ibid 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 the case of Bennett, notwithstanding the vigorous dissent by Scrutton L.J., the workman is not held to have irrevocably committed himself by the initiation of proceedings from which he has resiled. Bankes L.J., who was in the majority, seems nevertheless to have thought Ibid 390 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 the section, (1.) that it protects the employer from being proceeded against more than once; (2.) 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 like as if this was intended and Scrutton L.J. 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 answer to it, the validity of which the workman at once recognizes. 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 recognizes 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 sub-s. 2 of s. 29 less the costs 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 night 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 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 if 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 M.R. [1944] KB 718, 721 that the case is covered by the decisions of the Court of Appeal in Perkins v. High Stevenson & Sons, Ld. [1940] 1 KB 56 , and Selwood v. Townley Coal & Fireclay Co., Ld. [1940] 1 KB 180 , in which it was held that “a workman who has been paid compensation under the Act, which he has 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 Lord Patrick in his judgment in the Scottish case of Brown v. William Hamilton & Co. 1944 SL T 282; 37 BW CC Supp 52 , 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. 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 learned 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 on the construction to be placed on s. 29, sub-s. 1, of the Workmen's Compensation Act, 1925, which, so far as is material, is in the following terms. [His Lordship stated the sub-section and continued:] The wording is not very artistic, but the aim is, I think, clear enough, namely, 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 sub-section was, he said, to be found by reading the second part as exegetical or explanatory of the first, i.e., 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 argument he cited the observation of Kennedy J. in Rouse v. Dixon [1904] 2 KB 628, 634 : “It is not impossible to construe s. 1, sub-s. 2 (b)” (the corresponding section in the Act of 1897) “as meaning that the option may be exercised unless and until a claim has proceeded to a decision.” The respondents, on the other hand, urged that the two parts of the sub-section 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 respondents' 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 July 24, 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 s. 29, sub-s. 2, which expressly make provision for this contingency. See Edwards v. Godfrey [1899] 2 QB 333 , and Cribb v. Kynoch, Ld. (No. 2) [1908] 2 KB 551

     The general principle is founded on Lord Blackburn's dictum in Kendall v. Hamilton (1879) 4 App Cas 504, 542 : “There cannot be election until there is knowledge of the right to elect.” It finds support in such cases as Rouse v. Dixon [1904] 2 KB 628 , Bennett v. L. & W. Whitehead, Ld. [1926] 2 KB 380 , and Unsworth v. Elder Dempster Lines, Ld. [1940] 1 KB 658 , and is not inconsistent with Burton v. Chapel Coal Co., Ld. 1909 SC 430; 2 BW CC 120 , 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, cases such as Mackay v. Rosie 1908 SC 174; 1 BWCC 52 , and Birch v. Pease & Partners, Ld. [1941] 1 KB 615 , 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 mtter of law. In so far as Perkins v. Hugh Stevenson & Sons, Ld. [1940] 1 KB 56 , and Selwood v. Townley Coal & Fireclay Co., Ld. [1940] 1 KB 180 , 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 Lord Patrick in the more recent case of Brown v. William Hamilton & Co. 1944 SL T 282; 37 BW CC Supp 52 , 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 give the grounds for my preference. In the English cases, as I understand them, the Court of Appeal construed s. 29, sub-s. 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 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 on the second half of the sub-section 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' case [1940] 1 KB 56 and Selwood's case [1940] 1 KB 180 ), but once it was acknowledged, as it was in Unsworth v. Elder Dempster Lines Ld. [1940] 1 KB 658 , 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 sub-section. 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 sub-section 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 sub-section 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., Ld. v. Waddell [1931] AC 575 . In Codling v. John Mowlem & Co., Ld. [1914] 2 KB 61, 69 , Atkin J., as he then was, had said 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 Lord Dunedin, said [1931] AC 575, 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 sub-section 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 reason, but for that 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 on the meaning and effect of s. 29 of the Workmen's Compensation Act, 1929, 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 s. 29 of the Act of 1929 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 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 on 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 my noble and learned friend 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” add nothing. In Bennett v. L. & W. Whitehead, Ld. [1926] 2 KB 380, 404 , Scrutton L.J. said: “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 dear 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 on 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 of Scott L.J. in Coe v. London and North Eastern Ry. Co. [1943] KB 531, 540 : “That 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 L.J. is the right one, the practical difficulties are grave indeed. There are no doubt regions of the law in which it is necessary to inquire 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 on 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 namely, 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 L.J. in the passage that I have cited, 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 inquire 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 4 App Cas 504, 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, 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.