C. A. 1903 OLIVER v. STEAM SHIPPING by s. 6 of the Workmen's Compensation Act, 1897, and so precluded himself from bringing the present action. Sect. 6 is as follows: "Where the injury for which comNAUTILUS pensation is payable under this Act was caused under circumstances creating a legal liability in some person other than COMPANY, the employer to pay damages in respect thereof, the workman may, at his option, proceed, either at law against that person to recover damages, or against his employer for compensation under this Act, but not against both, and if compensation be paid under this Act, the employer shall be entitled to be indemnified by the said other person." S. T. Evans, K.C., and J. Sankey, for the plaintiff. The defendants were in the position of "some person other than the employer" within s. 6 of the Workmen's Compensation Act, 1897, and the plaintiff had a right, at his option, to proceed either against them for damages or against his employers for compensation, but not against both. The object of the section is to provide against a double claim for both damages and compensation. There is nothing in the evidence to shew that he exercised this option and elected, by taking the money from his employers through the insurance company, to proceed against them rather than against the defendants. The exercise of an option involves the consideration of two alternatives. Here there is no evidence that when he took the money he was aware that he had any remedy except by action. The fact that he gave notice to his employers of his accident is not sufficient. He was obliged to do that under the Employers' Liability Act of 1880 as well as under the Act of 1897. It has been held in Powell v. Main Colliery Co., Ld. (1), that even a notice under the Act claiming compensation is not what is technically called a "legal proceeding" at all. Here, the plaintiff made no "claim" whatever, so that it is impossible to say that he ever did "proceed so as to give up his rights against the defendants. All the receipts must be treated as having been given "without prejudice"; but, apart from that, they did not constitute such (1) [1900] A. C. 366. agreements as would debar the plaintiff from pursuing his remedies against the defendants: Wright v. John Bagnall & Sons, Ld. (1); Rendall v. Hill's Dry Docks and Engineering Co., Ld. (2) The receipt of money under such a notice as this is not a "proceeding" by the workman nor a waiver of his rights: Perry v. Clements (3); Tong v. Great Northern Ry. Co. (4); Field v. Longden & Sons. (5) In order to prove exercise of the option there must be a proceeding for the recovery of compensation, not a mere notice of injury given in order to enable the workman to take advantage of the Act: Little v. MacLellan, Ld. (6); Beckley v. Scott & Co. (7); Thompson & Sons v. North Eastern Marine Engineering Co., Ld. (8) It is immaterial that he submitted himself to a medical examination, for under Sched. I., rule 3, of the Act he was practically compelled to do so. Little v. MacLellan, Ld. (6), will, no doubt, be cited by the defendants; but that was a case under a different section (s. 1, sub-s. 2) and the receipts were in a totally different form to those here, for they stated that the sums were received by the workman "in full satisfaction of the amount due to me as compensation." Moreover, the full amount of compensation was paid for the full period of six months. Upon the whole it is submitted that a workman is not making a "claim for compensation" or taking any "proceeding" when he does nothing more than simply accept a sum of money paid to him on account of compensation. Consequently here there has been no exercise by the plaintiff of his "option" under s. 6, and nothing to preclude his ordinary remedy at law. Abel Thomas, K.C. (Albert Parsons with him), for the defendants. Rendall v. Hill's Dry Docks and Engineering Co., Ld. (2), was a case, not under s. 6, but under s. 2, sub-s. 1; and moreover the question was whether there was a binding agreement between the workman and his employers. (9) But under this s. 6 the question is simply one of "option," quite (1) [1900] 2 Q. B. 240. (2) [1900] 2 Q. B. 245. (3) (1901) 49 W. R. 669; 17 Times L. R. 525. (4) (1902) 18 Times L. R. 566. (5) [1902] 1 K. B. 47. (7) [1902] 2 I. R. 504. (9) [1900] 2 Q. B. at p. 249. C. A. 1903 OLIVER V. NAUTILUS SHIPPING COMPANY. C. A. 1903 OLIVER v. NAUTILUS apart from agreement. The employer has nothing to do with the matter. The workman has his own "option," and the question in the present case is whether he has not "proceeded " and so exercised his option. Neither the case last cited nor Wright v. John Bagnall & Sons, Ld. (1), are material to the present question. When a workman accepts from his employer a weekly sum while incapacitated through injury, knowing that he is receiving it as "compensation," can he be said not to be exercising an option? The Irish case of Beckley v. Scott & Co. (2) was a case under s. 1, sub-s. 2, and not under s. 6, and was decided on principles not applicable to the present case. Sect. 6 was only referred to by Gibson J. in the Court below and by FitzGibbon L.J. in the Court of Appeal. Little v. MacLellan, Ld. (3), is on all fours with the present case, except that it was on a section (s. 1, sub-s. 2) which is not nearly so strong as s. 6. [VAUGHAN WILLIAMS L.J. referred to Lee v. Lancashire and Yorkshire Ry. Co. (4) as to a receipt for compensation being open to contradiction or explanation. ROMER L.J. Suppose the workman in the hurry of the moment issues a writ against the person responsible for his injury, and then, ten minutes after the defendant's appearance to the writ, has the action dismissed with costs, would you say he has exercised his option under s. 6?] Here the workman signed a receipt which is inconsistent with his not having exercised his option; and Jelf J. has held that he has in fact exercised it. The actual form of the receipt makes no difference when the question is whether the man has exercised his option. The whole case here shews that the plaintiff was "proceeding against his employer for compensation" within s. 6, and so exercising his option. [Ellen v. Great Northern Ry. Co. (5) was also referred to.] S. T. Evans, K.C., in reply. VAUGHAN WILLIAMS L.J. In this case Mr. Oliver sues the Nautilus Steam Shipping Company, Limited, for damages on (1) [1900] 2 Q. B. 240. (2) [1902] 2 I. R. 504. (4) (1871) L. R. 6 Ch. 527. (5) (1900) 49 W. R. 395; (1901) 17 Times L. R. 453. the ground that he has been injured under circumstances which throw upon the defendants primâ facie a legal liability in respect of the injury which he sustained. It is not in dispute that that is true; but the defendants, who are under this primâ facie liability, rely for their defence upon the 6th section of the Workmen's Compensation Act, 1897. The Act is not very easy to construe. It is an Act as to which I think I may properly say that the difficulties of construction are so great that it is not desirable that judges should decide more than is absolutely necessary for the decision of the particular case before them; and I do not myself propose to do so in the present case. Now s. 6 says that, "Where the injury for which compensation is payable under this Act was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof." That is the case here, for the defendants, the Nautilus Steam Shipping Company, Limited, are persons other than the employer liable to pay damages in respect of the injury. The section then proceeds: "the workman may, at his option, proceed, either at law against that person to recover damages, or against his employer for compensation under this Act, but not against both, and if compensation be paid under this Act, the employer shall be entitled to be indemnified by the said other person." Now, "the said other person" comes here and says that the plaintiff, the workman, has proceeded "against his employer for compensation under this Act": that he has not only proceeded against his employer under this Act for compensation, but has succeeded in obtaining payment of compensation under the Act; and that, under those circumstances, by the very terms of the 6th section of the Act of Parliament, the workman cannot now bring an action against him, the other person legally liable. I do not understand Mr. Evans to say that, if in this case it were true that the workman had received from his employer compensation, as such, under the Act, he could afterwards sue the other person; but, however that may be, it is perfectly plain, in my judgment, whichever view one may take of the VOL. II. 1903. 2 X 2 C. A. 1903 OLIVER v. NAUTILUS SHIPPING COMPANY. Vaughan Williams L.J. C. A. 1903 OLIVER V. NAUTILUS STEAM SHIPPING COMPANY. Vaughan Williams L.J. 6th section, that a workman who has received compensation from his employer under the Act cannot afterwards sue the other person. Therefore, the sole question in this case really is, Has Mr. Oliver received compensation from his employer under the Act? Mr. Evans addressed to us an argument which, I think, was based upon Rendall v. Hill's Dry Docks and Engineering Co., Ld. (1) He says that in that case, there being a receipt in the identical form of the receipt in this case, it was held that the plaintiff, who had received moneys much in the same way as the plaintiff has in the present case, had not thereby commenced proceedings so as to exempt himself from the operation of the limitation which is provided by s. 2, sub-s. 1, which says: "Proceedings for the recovery under this Act of compensation for an injury shall not be maintainable unless notice of the accident has been given as soon as practicable after the happening thereof and before the workman has voluntarily left the employment in which he was injured, and unless the claim for compensation with respect to such accident has been made within six months from the occurrence of the accident causing the injury." Mr. Evans contended that, because the Court of Appeal held in that case that the payment and the presence of the receipt, which was in the same form as that here, were not held to constitute a claim for compensation within the six months so as to oust the operation of the statutory limitation, therefore we ought to say in the present case that there has been no claim under the Act, and no payment under such a claim. I can only say I do not agree with that argument. It must be remembered that, at the time that case was decided, it was supposed, following the law as laid down by the Court of Appeal in Powell v. Main Colliery Co., Ld. (2), that the claim for compensation, which must be made within the six months, was a claim to be made by a step in legal proceedings, such as filing a claim for arbitration in the county court. Therefore, I shall not further discuss the case of Rendall v. Hill's Dry Docks and Engineering Co., Ld. (1), because I do not think it at all affects the case before us. (1) [1900] 2 Q. B. 245. (2) [1900] A. C. 366. |