C. A. 1903 OLIVER V. NAUTILUS SHIPPING Vaughan Williams L.J. The only question which, as I have already said, we have to decide here, is whether or not, under the Act, there has been money paid by the employer to and received by the workman. Had it not been for the evidence as to the acceptance of payments "without prejudice," which was stipulated for by the workman upon the occasion of receiving the second payment, COMPANY. and which, moreover, was noted by the agent in his book when making that payment, I should have been inclined to say that the action against the person other than the employer could not possibly have been brought, having regard to the terms of s. 6 of the Act. I think the statement which was made by the workman in the hospital as to the payments being accepted by him "without prejudice," and which was assented to by the agent who made the payments, makes all the difference. Mr. Abel Thomas frankly accepted the proposition that if there had been no first payment made without being subject to this expression of "without prejudice," he could not have supported his case here. He accepted the position that the result of the reservation "without prejudice" was that which was described by the learned judge in his judgment, where he says: "I find, as a fact, that the insurance company intended to pay the compensation under the Act, and the plaintiff intended to take it under the Act, but that the plaintiff tried, after the first occasion when he got the 47. 13s. 4d., to keep open any other remedy if he could." If that was so, Mr. Abel Thomas was perfectly right in saying that, having regard to all those payments which were made under the reservation "without prejudice," it could not be said that those payments were such as to prevent the plaintiff from suing the third person mentioned in the 6th section of the Act, because those payments were made without prejudice (as the learned judge says) to any other remedy which the plaintiff might have; and I should go further myself and say, "Altogether without prejudice in any respect." Here was an agent standing in the shoes of the employer, and who might be expected to act in the same way that an employer, taking an interest in his workmen, might be expected to act, that is to say, to come to the man lying in a state of suffering, as he then was, and say, C. A. 1903 OLIVER V. "You are entitled under the Act of Parliament, if you claim compensation, to receive each week a sum of money bearing the statutory proportion to your wage. Here it is, take it; and take it without prejudice: which means leaving you exactly in the same position as if you had not taken it, and not binding you to retain the money in any way if you, upon Vaughan rising from your sick bed, should think it better not to accept this money from me, your employer, under the Workmen's Compensation Act, but should elect to take the remedy against the third person who is under the legal liability described in the 6th section of the Act." NAUTILUS Williams L. J. Then it seems to me the only difficulty remaining is that which arises in respect of the first payment-that is, the payment which was made upon January 15. That was not made subject to any such reservation as "without prejudice." The real question, then, is, Ought we to treat the first payment as having been made subject to the same condition as the later payments? I think we ought, and for the following reason. After all, a receipt does not in itself create an estoppel of any sort or kind. You are at liberty to take all the circumstances surrounding it into consideration, and ask yourself the question what was the real intention of the parties when the receipt was given and taken. One must not forget, although I am not going to dispute Jelf J.'s findings, that this man understood what he was doing when he gave the receiptunderstood, that is, that he was receiving a payment of compensation under the Workmen's Compensation Act. I do not think it would be a fair inference to draw that this man was at that moment in such a state of bodily health and mind that he could really make any election as to what would be the best course to pursue. To my mind, one cannot have a stronger piece of evidence that this is true as to the state of things upon January 15 than the evidence of the acts of the insurance company's agent. What did the agent mean when, upon the next occasion, the following week, he accepted, as he clearly did accept, the receipt which was given subject to the qualification of "without prejudice"? He accepted it upon that occasion, and he accepted it upon all subsequent occasions, subject to that qualification until the month of May, when the plaintiff In my judgment, this is sufficient to dispose of the case. I think, under those circumstances, the plaintiff was entitled to bring his action; and, as the damages have been agreed, I think we ought to allow this appeal and reverse the decision of Jelf J. and enter judgment for the plaintiff for 3751. I only have to add that I have endeavoured not to express any opinion, or give any judgment, upon any points other than those necessary for the decision of this case, beyond saying C. A. 1903 OLIVER v. NAUTILUS SHIPPING COMPANY. Vaughan Williams L.J. C. A. 1903 OLIVER that if there is a payment and a receipt of money under the Workmen's Compensation Act, and that receipt is in no way qualified, I think that is sufficient to bring the case within the operation of s. 6 and to put the workman in the position of having proceeded against his employer for compensation and COMPANY. recovered it. recovered it. I express no opinion whatsoever upon the other numerous points which have been very properly raised in the discussion of this case before us. v. NAUTILUS Vaughan Williams L.J. ROMER L.J. I have come to the same conclusion. To my mind the question upon which this appeal turns is simply one of fact: Had the plaintiff, before he commenced this action, exercised the option given to him by s. 6 of the Workmen's Compensation Act, by proceeding against his employers so as to preclude him, by virtue of the section, from now suing the defendants? The judge in the Court below came to the conclusion that the plaintiff had exercised the option in the sense I have mentioned; but this, to my mind, is chiefly because the learned judge drew certain inferences from the facts of the case, which were really not much in dispute. It is quite open to us, in my opinion, to differ from the learned judge in the conclusion of fact he has come to in this case. This is not like a case where a judge has seen the witnesses and has had to decide a question of fact which depended upon which side the witnesses were speaking the truth, where there was a direct conflict of evidence. In a case where there is a direct conflict of evidence on the main issue of fact, and the judge has seen the witnesses and declared he believes one side and not the other, naturally enough the Court of Appeal would not like to differ from the judge in such a case as that. That is, to my mind, wholly distinct from this case. I think this case is one, as I have said, where the learned judge has proceeded upon certain inferences he has drawn from the facts, and from which facts it is as well open for us to draw inferences as the learned judge in the Court below. I think, therefore, I am at liberty to decide this question of fact for myself upon the evidence; and, looking at the evidence, I come to the conclusion that it would not be right for us to hold that the plaintiff has precluded himself by what he did from now suing the defendants. In the first place, I may point out that under s. 6 it cannot, I think, be said that a workman must necessarily be held to have exercised the option given to him as against his employers, or as against the stranger liable, merely because he has taken some proceedings either at law against the stranger or under the Act as against the employer. Whether the proceedings would in fact be such as to bind the workman must depend upon the circumstances of each case, including a consideration of what has resulted from the proceedings, and whether or not any injury will result if the proceedings are held not to irrevocably bind the workman. Further, I should like to say, for myself, that in dealing with any particular case I should try and look at it as a matter of substance, and decide it on the substance rather than on matters of form. I will further add that, as at present advised, though it is not necessary for me to express a final opinion on the point for the determination of this case, I am disposed to think that proceedings by a workman against his employer for compensation should not be held to irrevocably bind the workman in the exercise of the option given him by s. 6 unless those proceedings have resulted in some compensation, as such, being paid to and received by the workman in such a manner so as to bind both parties. With those observations I will now deal with the facts of this case. The workman, after he is injured, sends in a notice of injury. That was a proceeding taken, and properly taken, by him by way of caution, and certainly was an innocent act, and one that would not bind him in any way so far as concerns the point involved in this appeal. Now, substantially-putting aside for the moment the question as to the effect of certain payments that have been made to him-beyond sending that notice of injury, the workman did absolutely nothing in this case he did not make a formal claim; he sent in no notice of claim. The mere fact that a doctor subsequently visited him I only mention to pass it by, because it appears to me to have really no materiality. C. A. 1903 OLIVER v. NAUTILUS STEAM SHIPPING COMPANY. Romer L.J. |