C. A. 1903 OLIVER V. NAUTILUS Romer L.J. I therefore proceed at once to the question of the payments that were made to the workman. To my mind, it is most material to see how those payments were made, and in what respect they were made, and how they were received by the workman. They were paid in this wise. The man was lying COMPANY. Seriously ill. I take it that, although seriously ill and in great pain, he understood sufficiently to know what was passing. An agent comes from the insurance company, who have indemnified the employers and therefore are the persons really liable to pay if the employers are liable, and offers to make a certain payment, something like a weekly payment, to the workman. The agent makes the payment and takes a receipt. That receipt purports to be a receipt of a sum on account of compensation which might be or become due to the workman under the Act. I will take it that the workman knew what was in that receipt, and that he knew he had a claim, or might make a claim, under the Workmen's Compensation Act; but when the receipt is considered, this is, at any rate, clear, that it in no wise bound the employer to any recognition of liability on his part. It left everything open to him except-although I need not decide the question that it is possible, after the receipt had been given, it might be implied, as between the parties, that a claim was supposed to have been made by the workman under the Act. But the payment was not made, as I have already pointed out, as admitting any liability on the part of the employer, nor can it be taken, therefore, as against the workman, to have been received by him irrevocably, or as having been made on an admission, as between the parties, of liability on the one part and receipt in respect of an admitted right by the workman on the other. It seems to me to have left, even on the form of the receipt, the position of the parties in an indeterminate form. Neither, it appears to me, were absolutely bound by the payment, or by the form of the receipt. But the matter does not end there; after the first payment had been made the agent of the insurers comes again to make a further weekly payment. Now, in the meantime, between the first payment and the second, the plaintiff is informed by an officer of his trade union that payments ought to be received by him expressly without prejudice; and accordingly, the next payment and all subsequent payments are made to the workman on the terms that they are received by the workman expressly without prejudice. I infer from the fact of the officer of the trade union having come to the workman, and from the other evidence in this case, that between the first payment and the second the plaintiff had been informed of what he was previously ignorant of— namely, that he might have a claim against the defendants, and not necessarily a claim against the employers at all under the Workmen's Compensation Act. At any rate, this is clear, that the second payment and all subsequent payments are made to and received by the workman expressly without prejudice. It is noticeable that no objection is made on behalf of the agent for the insurers to the payments being made and received on that footing. It appears to me that under those circumstances we ought not to consider the first payment to be left standing, as it were, by itself as an isolated and fatal fact, but that we must look and see what subsequently took place. I think the second payment and subsequent payments, which were made expressly without prejudice, shew, under the circumstances, that the parties must, as between themselves, have treated the first payment as not having irrevocably bound the workman, but, for the purpose I am now considering, as having been made also without prejudice. It is admitted before us that, for the purpose of this appeal, the plaintiff cannot be said to have been at all prejudiced or affected by any of the payments after the first; but it is said, and the learned judge has so decided, that because of that one payment made without anything expressly being said by the workman at the time of payment-notwithstanding the form of the receipt, and notwithstanding the other circumstances that that first payment and retainer of the money irrevocably bound the workman, and made it impossible for him, notwithstanding all the circumstances, thereafter to say that the defendants remained liable to him, as they undoubtedly were liable, at common law. I think that under the circumstances we ought not to agree with the learned judge in that C. A. 1903 OLIVER V. NAUTILUS STEAM SHIPPING COMPANY. Romer L.J. C. A. 1903 OLIVER v. NAUTILUS Romer L.J. conclusion. It seems to me that, looking at the substance of this case, justice requires that we should hold that the workman has not irrevocably bound himself by what he has done -that he has not exercised his option under s. 6 in such a manner as to enable the defendants to say that they are free from all liability to the plaintiff under the common law. I need only say, in conclusion, that in my opinion the case of Little v. MacLellan, Ld. (1), is perfectly distinct from the present case; in fact, if the judgments of the learned judges who decided that case are examined, it will be seen that they base their decision on grounds which emphasize the distinction between that case and the present. They found there, as a matter of fact, that payments were made to and received by the workman as payments due in respect of an admitted liability, and as a satisfaction pro tanto, as they went on, of the liability under the Act. The circumstances are quite distinct from the present, and, as I have said, the very reasons on which that case was based shew to my mind that, if the learned judges had had to decide the present case, they would have decided it in the way in which we are now doing. At any rate, it forms no authority against the views I am expressing. I agree, therefore, that this appeal ought to succeed. STIRLING L.J. I am entirely of the same opinion. I respectfully differ from Jelf J. on one point. I think, as my brethren do, that he has attached too little importance to the fact that all the payments after the first were made without prejudice. I do not differ from him upon or question any of his findings of fact as they stand; but I think, in the conclusion at which he arrived by way of inference from those findings, he neglected to give due weight to that circumstance, and I agree with the view which my brethren have taken of the case. I wish, however, to say for myself that, as at present advised, I have great difficulty in seeing how Jelf J.'s decision is reconcilable with the decision in Rendall v. Hill's Dry Docks and Engineering Co., Ld. (2), which was cited by Mr. Evans. (1) 2 F. 387. (2) [1900] 2 Q. B. 245. That case must be read in connection with the case which preceded it-Wright v. Bagnall. (1) The latter case I understand to be a decision that, where an agreement is arrived at between the master and the servant, that there is a statutory liability on the part of the master to pay compensation under the Act, but the amount of compensation is left to be settled afterwards by a judge or arbitrator, the employer will not be allowed to set up the defence that no claim was made within six months of the accident. That I understand to be in accordance with the decision in the Scottish case of Little v. MacLellan, Ld. (2), which has been referred to. Such being the decision in Wright v. Bagnall (1), the case of Rendall v. Hill's Dry Docks and Engineering Co., Ld. (3), occurred shortly afterwards. There what took place was this: apparently no notice of the injury was sent under the Act, nor was any formal claim put forward, but payments were made by an insurance company on behalf of the master, and receipts were taken precisely in the same form as are found to have been taken in the present case. In that state of things the county court judge, before whom the case came, held that a claim for compensation under the Act did not mean only an application for arbitration; he further held that if, having regard to the defence of the appellants, it was open to them to object that the weekly receipts signed by the respondent were not claims for compensation, such receipts were either claims for compensation or were evidence that a claim had been made, and that the appellants, by taking such receipts and paying the weekly sums therein mentioned, either waived a claim for compensation or were estopped from taking their objection. He held, therefore, that the employers were not entitled to set up the objection that no claim had been made within the six months. I think it is quite true, as has been pointed out by Vaughan Williams L.J., that at that time the decision in Powell v. Main Colliery Co., Ld. (4), in the Court of Appeal was standing, and the case was decided with reference to that decision. (1) [1900] 2 Q. B. 240. (3) [1900] 2 Q. B. 245. (4) [1900] A. C. 366. C. A. 1903 OLIVER v. NAUTILUS Stirling L.J. C. A. 1903 OLIVER v. NAUTILUS STEAM SHIPPING COMPANY. Stirling L.J. But it does not seem to me that that exhausts the case, because A. L. Smith L.J., who delivered the judgment of the Court, after referring to the receipt, says (1): "Do these circumstances shew a waiver of the six months' limitation, or amount to an estoppel against setting up that defence? Clearly they do not. The case of Wright v. Bagnall (2) has been referred to. What was the ratio decidendi in that case? There the claim for compensation had not been made within six months of the accident, and the county court judge held, as my brother Collins says, that the parties had agreed that there was a statutory liability on the respondents to pay compensation, and that each of them had reserved the right to go to the Court to have the amount determined. My brother Vaughan Williams seems also, during the argument, to have said what was exactly to the same effect. Where is there any evidence in the present case that the parties agreed that there was any liability on the part of the employers to pay compensation? I can see no evidence of any such agreement." The judgment of the county court judge as to the effect of the receipts was overruled. The evidence before the Court in that case was similar to the evidence which occurs here, and that decision seems to me to constitute a difficulty in the way of upholding the judgment of Jelf J. I desire to abstain from expressing any opinion as to the true meaning of the word "proceed" in the 6th section of the Workmen's Compensation Act, only saying that it seems to me great weight should be attached to the judgments which have been delivered in the Irish case of Beckley v. Scott & Co. (3) Appeal allowed. Solicitors: Riddell, Vaizey & Smith, for H. Williams, Neath; Botterell & Roche, London and Sunderland. (1) [1900] 2 Q. B. at p. 249. (2) [1900] 2 Q. B. 240. (3) [1902] 2 I. R. 504. G. I. F. C. |