an action independently of the Act, and failed in such action, could only Sec. 29 (2) obtain the benefit of the Act by availing himself of the provisions of the Sub-section, and that he must then and there apply to the Judge trying the action for an assessment of compensation or go without it. If he did not so apply to the Judge, but appealed against the adverse decision in the action, and the appeal was unsuccessful, he lost his right to compensation under the Sub-section, because there was no power in the appellate tribunal to award him compensation or to remit the case to the Court of first instance for compensation to be assessed. Similarly, if the workman brought an action independently of the Act and was successful, and the employer successfully appealed, the workman lost both the damages he had been awarded in the action and his right to compensation under the Sub-section. See Edwards v. Godfrey ([1899] 2 Q. B. 333; 68 L. J. Q. B. 666; 80 L. T. R. 672; 15 T. L. R. 365; 1 W. C. C. 32); Harrison v. Wythemoor Colliery Co., Ltd. ([1922] 2 K. B. 674; 91 L. J. K. B. 832; 38 T. L. R. 694; 127 L. T. R. 629; 15 B. 98; [1923] W. C. Rep. 180).

This harsh and unsatisfactory state of affairs is altered by the provisions of Sec. 29 (2) (p. 411). Under this Section is it no longer necessary for a workman, who brings an action independently of the Act, to apply to the Court of first instance, at the termination of the action, to award him compensation under the Section. Sec. 29 (2), whilst retaining all the provisions of Sec. 1 (4) of the Act of 1906, extends the power to award and assess compensation under the Act to any appellate tribunal, whether the appeal is brought by the workman or the employer. Thus on and after 1st January, 1924, any workman who, having brought an action independently of the Act, fails in an appeal may, if he so choose, request the appellate Court to assess the compensation under the Act. Sec. 29 (2) further provides that the appellate tribunal may, if it so please, remit the case to the County Court for the compensation to be assessed.

In Kyle v. M'Gintys ([1911] S. C. 589; 48 S. L. R. 474; 4 B. 389) it was held that the right given under this Sub-section is a personal privilege to the one who brings the action, and, consequently, where an action brought by the father of a deceased workman was dismissed more than a year after the accident, and was followed by an application to assess compensation, it was held that the mother and sisters of the deceased, who had previously taken no steps to obtain compensation under the Act, could not be added as applicants on the application to assess compensation. See note on p. 401.

WHEN DISMISSAL OF ACTION APPEALED AGAINST.-It was a matter of some doubt under the 1906 Act whether a workman who brought an action independently of the Act and failed could preserve his right to compensation under this Section by applying to the Court of first instance to formally assess the compensation without prejudice to his right of appeal. It was finally decided that he could not do this, and that, having asked the Court to assess compensation, he had exercised his option under Sec. 1 (2) (b) [now Sec. 29 (1)] and elected to claim compensation under the Act.

In Harrison v. Wythemoor Colliery Co., Ltd. ([1922] 2 K. B. 674; 91 L. J. K. B. 832; 38 T. L. R. 694; 127 L. T. R. 629; 15 B. 98; [1923] W. C. Rep. 180) a workman died as the result of injuries received at work. The widow brought an action at common law against the employers, founded on the alleged breach by another of their workmen

Sec. 29 (2)

of a statutory regulation made under the Coal Mines Act, 1911. The Judge found on the evidence that the defendants were not liable. An application was then made for an award of compensation under the Workmen's Compensation Act, without prejudice to the right of appeal from the above decision. The Judge granted the application and gave a certificate of compensation. In an appeal against the finding in the common law action, it was argued that the plaintiff having obtained a certificate of compensation" without prejudice to her right of appeal in the common law action, such appeal was maintainable, and that the certificate of compensation was only to take effect in the event of the appeal failing. It was held, however, (1) that the Judge had no jurisdiction to grant a certificate of compensation "without prejudice" to the right of appeal; (2) that having asked the Judge in the Court of first instance to assess the compensation under the Act, the plaintiff had exercised her option under Sec. 1 (2) (b) [now Sec. 29 (1)] and elected to claim compensation under the Act, and therefore all further proceedings in the action by way of appeal or otherwise were barred.

Edwards v. Godfrey (p. 402), Neale v. Electric and Ordnance Accessories Co. (p. 410), Cribb v. Kynoch, Ltd. (p. 402), were approved and followed on this point.

Beckley v. Scott and Co. (p. 402), Isaacson v. New Grand (Clapham Junction), Ltd. ([1903] 1 K. B. 539; 72 L. J. K. B. 227; 5 W. C. C. 35), Rouse v. Dixon (p. 402), where the contrary view had been held, were disapproved.

In so far as Harrison's case (supra) decided that an application for the assessment of compensation under Sec. 1 (4) [now Sec. 29 (2)]. whether made without prejudice to the right of appeal or not, bars all further proceedings in the action by way of appeal or otherwise, it would seem to be still good law, and to be unaffected by Sec. 18 of the amending Act of 1923, the provisions of which Section are maintained in Sec. 29 (2) of the 1925 Act. Thus where a workman, after the dismissal of an action, applies to the Court of first instance to assess compensation under this Section, he is still barred from proceeding further in the action by way of appeal; and, similarly, where a workman fails in an appeal in a common law action, and applies to the appellate Court under Sec. 29 (2) to assess compensation, he is barred from further appealing in the action.

DEDUCTION OF COSTS.-The effect of this Sub-section is to leave the Court full liberty to exercise any power of awarding costs which it may have in the action, and to confer the additional power of deducting from the compensation costs caused by the plaintiff bringing the action instead of proceeding under the Act. If the Court in which the action is tried is the County Court, the power of dealing with the costs is given by Sec. 114 of the County Courts Act, 1888,' and if the action be in the High Court, the High Court has full power to deal with costs under Sec. 5 of the Judicature Act, 1890 (per Stirling, L. J., in Cattermole v. Atlantic Transport Co, Ltd. (infra)).

Under Sec. 29 (2) if an appellate tribunal does not itself assess compensation and make an order as to deduction of costs, it may remit the case to the County Court for the assessment of compensation with or without an order as to the deduction of costs.

In Skeggs v. Keen ([1899] 1 W. C. C. 35) the County Court Judge

1 51 and 52 Vict. c. 43.

2 53 and 54 Vict. c. 44.

assessed compensation under this Sub-section, but, finding that all the Sec. 29 (2) costs were incurred by the bringing of the unsuccessful action, he refused to allow the workman any costs and his decision was upheld. Rigby, L.J., expressed the opinion that, when the claim for compensation was only made on the failure of an action, there was no jurisdiction to give the workman any costs.

But in Cattermole v. Atlantic Transport Co., Ltd. ([1902] 1 K. B. 204; 71 L. J. K. B. 173; 85 L. T. R. 513; 18 T. L. R. 102; 4 W. C. C. 28) it was held that, where on the failure of an action, compensation is assessed under this Sub-section, the Court has power to deal, not only with the costs of the action, but also with the costs of the proceedings for the assessment of compensation. In this particular case the County Court Judge gave the workman's widow the costs of the whole of the proceedings, including those of the action in which she failed, and though it was held that he had power to do so, Stirling, L.J., said :-" In general this would not be right; but such an order may be justified by special circumstances, as if, for example, the Judge were satisfied that no costs had been caused by the plaintiff bringing an action instead of proceeding under the Act."

As a general rule, therefore, it may be laid down that a plaintiff, who has failed in his action, but who has succeeded in obtaining compensation, should have the costs of the successful proceedings, except in so far as they have been increased by any part of those proceedings which has failed, and should bear all the costs occasioned by such failure (per Stirling, L.J., in Cattermole v. Atlantic Transport Co., Ltd. (supra)).

In M'Kenna v. United Collieries, Ltd. ([1906] 8 F. 969; 43 S. L. R. 713) an action for damages failed, but no evidence was given upon which compensation under this Sub-section could be assessed. The amount was afterwards agreed, and it was held that the defendants were entitled to deduct from the award of compensation their costs down to the date when the verdict was applied, no costs thereafter being given to either party.

In Black v. Fife Coal Co., Ltd. ([1909] S. C. 152; 46 S. L. R. 191; 2 B. 456), in an action for damages at common law and alternatively under the Employers' Liability Act, 1880,' the defendants tendered the amount that the plaintiffs were entitled to under the Workmen's Compensation Act, which was the same amount that was claimed under the Employers' Liability Act,' but the tender was refused. The defendants obtained judgment at common law, but were found liable under the Employers Liability Act for the sum claimed under that Act. The Court of Session held that, as the plaintiffs had recovered the exact amount which the defendants had admitted their liability to pay, the defendants were entitled to the costs of the action, as the tender under the Workmen's Compensation Act was a sufficient tender. The case was taken to the House of Lords ([1912] S. C. (H. L.) 33; 49 S. L. R. 228; 5 B. 217), but the point under discussion did not arise there.

An appeal against an order as to the deduction of costs lies to the Court of Appeal, not to a Divisional Court (Williams v. Army and Navy Auxiliary Co-operative Society, Ltd. [1907] 23 T. L. R. 408; 9 W. C. C. 104).

CERTIFICATE OF COMPENSATION.-When the Court assesses the compensation, it must give a certificate of the compensation awarded,

1 43 and 44 Vict. c. 42.

Sec. 29 (2)

Sec. 30

Remedies

both against

stranger.

and such certificate has the force of an award under this Act. A form of the certificate is given in Appendix C, Form 45.

30. Where the injury for which compensation is payable under this Act, or any scheme certified under

employer and this Act, was caused under circumstances creating a legal liability in some person other than the employer to pay damages in respect thereof

1906 Act, Sec. 6.

1923 Act. Sec. 24 (5).

man,

(1) The workman may take proceedings both against that person to recover damages and against any person liable to pay compensation under this Act or such scheme for such compensation, but shall not be entitled to recover both damages and compensation; and

(2) If the workman has recovered compensation under this Act or such scheme, the person by whom the compensation was paid, and any person who has been called on to pay an indemnity under section six of this Act relating to liability in case of workmen employed by contractors, shall be entitled to be indemnified by the person so liable to pay damages as aforesaid, and all questions as to the right to and amount of any such indemnity shall, in default of agreement, be settled by action, or, by consent of the parties, by arbitration under this Act.

WORKMAN'S DOUBLE REMEDY.-Under this Section, a workwho is injured under circumstances creating a legal liability in a stranger to pay him damages, has a double remedy. He can either bring an action against the stranger, or claim compensation from his employer or any person liable to pay compensation under this Act, or do both, as if he fails in his action, there is nothing to prevent him from still recovering compensation or vice versa. But he is prevented from obtaining damages from a stranger and also compensation from his employer, in respect of the same injury. (Tong v. Great Northern Railway Co. [1902] 86 L. T. R. 802; 18 T. L. R. 566; 4 W. C. C. 40.) In Gray v. North British Railway Co. ([1915] S. C. 211; 52 S. L. R. 144; 8 B. 373) a workman, injured by accident, was paid compensation by his employers for three years, when he died. His father thereafter, averring that death resulted from the injury, brought an action for damages for the loss caused to himself by his son's death against a third party, by whose fault, he alleged, the accident had been caused. It was held that the action was incompetent.

CIRCUMSTANCES CREATING A LEGAL LIABILITY.-These words mean not merely circumstances which in fact create a legal

liability, but circumstances which are alleged to create a legal liability, Sec. 30 and which would be the foundation of an action for damages for negligence. See Page v. Burtwell (infra).

SOME PERSON OTHER THAN THE EMPLOYER.-These words include a fellow-workman. Where, therefore, a workman has been injured by accident, the accident having been caused by the negligence of fellow-workmen, and compensation has been duly paid by the employer, the latter is entitled to be indemnified by the fellow-workmen (Gibson v. Dunkerley Brothers-Lees and Sykes, Third Parties [1910] 102 L. T. R. 587; 3 B. 345; and, on appeal, sub. nom., Lees v. Dunkerley Brothers [1911] A. C. 5; 80 L. J. K. B. 135; 103 L. T. R. 467; 4 B. 115; 48 S. L. R. 724). It follows from this decision that the doctrine of common employment does not apply as between fellow-workmen, and the dictum of Pollock, C.B., in Southcote v. Stanley (1 H. & N. 247), that one servant cannot maintain an action against another for negligence whilst engaged in their common employment, was expressly dissented from by Lord Loreburn, L.C.

WHAT AMOUNTS TO TAKING PROCEEDINGS.-It was held in Page v. Burtwell ([1908] 2 K. B. 758; 77 L. J. K. B. 1060; 99 L. T. R. 542; 1 B. 267) that the meaning of proceedings in this Section is not to be confined to legal proceedings actually taken, but is satisfied if a claim is made and acted upon, as to recover damages or compensation does not necessarily mean to recover by means of legal proceedings; it is enough if the workman has claimed compensation in the nature of damages from the third party and received it. In that case an injured workman made a claim for compensation against a Iperson other than his employer" whom he alleged to be under legal liability for negligence, and received various payments in satisfaction of his claim without having resort to legal proceedings, though legal liability was not admitted. It was held that he was prevented by this Section from afterwards obtaining compensation from his employer under this Act. See also Mulligan v. Dick and Son and Murray v. North British Railway Co., on p. 408.

Similarly, if a workman receives from his employers weekly payments as compensation under the Act, he is precluded from recovering damages from the person other than the employer," even though such damages are claimed for loss of profits not connected with his employment. For instance, in Woodcock v. London and North-Western Railway Co. ([1913] 3 K. B. 139; 82 L. J. K. B. 921; 109 L. T. R. 253; 29 T. L. R. 566; 6 B. 471; [1913] W. C. Rep. 563), where a collier, who had been injured by the negligence of the defendants' servants, received thirty-four weekly payments of compensation from his employers, it was held that he was precluded from obtaining damages from the defendants in respect of loss sustained by him through his inability to carry on the occupation of farming a small farm.

But it is in all cases a question of fact whether the workman really knew and appreciated that he was accepting payments as compensation under the Act so as to bar his rights at common law and vice versa. For instance, the mere unconditional receipt of compensation by a workman from his employer (if he understands the nature and effect of the receipt) will preclude him from claiming damages against a third party (Oliver v. Nautilus Steam Shipping Co., p. 406). But a workman is not bound by the terms of a written receipt, if, at the time of signing it,