Walsh v Electricity Supply Board

• Jurisdiction: Ireland
• Judgment Date: 20 December 1944
• Date: 20 December 1944
• Court: Supreme Court

Walsh v. Electricity Supply Board.

JOHN WALSH

Plaintiff

and

THE ELECTRICITY SUPPLY BOARD

Defendants

Supreme Court.

Workmen's Compensation - Election - Receipt of compensation under the Workmen's Compensation Act by workman - Subsequent action for negligence by him against his employers - Alternative remedies - Whether workman exercised his option either to claim compensation or to sue for damages for negligence - Workmen's Compensation Act, 1934 (No. 9 of1934) s. 60, sub-ss. 1 & 2.

Plaintiff brought an action against the defendants claiming damages for personal injuries sustained as a result of the alleged negligence of the defendants. At the time of the accident the plaintiff was in the employment of the defendants. Payments of compensation to the plaintiff were made by the defendants for a period of about fifteen months from the date of the accident though no proceedings under the Workmen's Compensation Act were ever brought. These payments were made to the plaintiff's wife who signed the receipts therefor in the plaintiff's name. The plaintiff knew that these payments were being made to his wife and admitted at the trial that he knew that the payments represented compensation. The proceedings claiming damages were commenced some time after the defendants began to make the payments of compensation to the plaintiff. At the close of the defendants' case the trial Judge (Maguire P.) directed the jury to answer in the affirmative the following question submitted to them:—"Has the workman, the plaintiff exercised his option under s. 60 of the Workmen's Compensation Act, 1934?" The jury answered the question as directed, and thereupon the Judge entered judgment for the defendants. The plaintiff appealed to the Supreme Court.

Held by the Supreme Court (Sullivan C.J., Murnaghan and O'Byrne JJ., Black J. dissenting) that the plaintiff had exercised his option under s. 60 of the Workmen's Compensation Act to take compensation and that the direction given to the jury by the Judge was correct.

Per O'Byrne J. (Sullivan C.J. and Murnaghan J. concurring): The effect of such payments was to make the defendants liable under the Act just as much as if proceedings had been brought under the Act and an award obtained from the Circuit Court Judge.

Perkins v. Stevenson and Sons, Ltd. [1940] 1 K. B. 56, and Selwoodv. Townley Coal and Fireclay Co., Ltd., [1940] 1 K. B. 180, applied.

Witness Action.

The plaintiff, John Walsh, brought an action against the defendants claiming damages for personal injuries sustained by him on the 14th February, 1941, as a result of the alleged negligence of the defendants who were the employers of the plaintiff at the time of the accident.

The defendants in their defence traversed the allegations of negligence and pleaded in par. 7 of their defence:—"Before the action the plaintiff claimed, accepted and received from the defendants payments of, and in respect of, compensation under the Workmen's Compensation Act, 1934, for personal injury caused to him on the 14th February, 1941, by accident arising out of and in the course of his employment by the defendants. The plaintiff is thereby barred from claiming damages in, and from maintaining, this action, which is founded on, and brought in respect of, the said accident."

The facts relating to the receipt of compensation by the plaintiff are fully set out in the judgment of O'Byrne J.

At the conclusion of the defendants' case the trial Judge (Maguire P.) directed the jury to answer "Yes" to the question:—"Has the workman, the plaintiff, exercised his option under s. 60 of the Workmen's Compensation Act, 1934?" The jury answered the question as directed, and Maguire P. then entered judgment for the defendants.

The plaintiff appealed to the Supreme Court (1).

Cur. adv. vult.

Sullivan C.J.

I have read the judgment prepared by Mr. Justice O'Byrne in this case. I agree with it and do not wish to add anything.

Murnaghan J. :—

I also agree with the judgment of Mr. Justice O'Byrne and for the reasons stated by him.

O'Byrne J. :—

The question involved in this appeal depends upon the construction and effect of s. 60 of the Workmen's Compensation Act, 1934.

The plaintiff was a linesman in the employment of the defendant company. On the 14th February, 1941, he was engaged in laying overhead cables in the city of Cork and, in the course of these operations, he caught hold of a wire which, unknown to him, was alive. He was, in consequence, precipitated to the ground and sustained serious personal injuries.

On the 29th July, 1941, he instituted these proceedings, claiming damages in respect of such injuries, which, as he alleged, were caused by the negligence of the defendants in failing to take reasonable and proper precautions for the safety of the plaintiff and other workmen engaged in the said operations.

Amongst other defences, the defendants pleaded that, before action brought, the plaintiff claimed, accepted and received from the defendants payments of, and in respect of, compensation under the Workmen's Compensation Act, 1934, for personal injury caused to him on the said date by accident arising out of and in the course of his employment by the defendants, and they claim that the plaintiff is thereby barred from claiming damages in, and from maintaining, the action, which is founded on, and brought in respect of, the said accident.

The action was tried by the President of the High Court and a jury on the 4th, 5th, 6th and 9th, days of November, 1942, whereupon the following question was submitted to the jury, viz., "Has the workman, the plaintiff, exercised his option under s. 60 of the Workmen's Compensation Act, 1934?" This question was answered in the affirmative by direction of the learned trial Judge, who thereupon entered judgment for the defendants. This appeal is taken from the judgment so entered and the grounds of appeal are that:—

1. The learned Judge misdirected himself in law in holding that it was a matter for the Judge to determine whether the plaintiff had, or had not, exercised his option to claim compensation under the Workmen's Compensation Act, 1934, so as to preclude him under s. 60 of the said Act from taking proceedings independently of the said Act.

2. The learned Judge misdirected himself in law and in fact in holding that, on the admitted facts, the plaintiff had exercised his option to claim compensation under the said Act, and thereby precluded himself under s. 60 thereof from taking proceedings independently of the said Act.

3. The learned Judge misdirected himself in law and in fact in directing the jury to find a verdict for the defendants.

It is clear from the evidence at the trial that the defendants always admitted that the injuries to the plaintiff were caused by an accident arising out of and in the course of the plaintiff's employment by the defendants, and that the defendants were liable to pay compensation to the plaintiff under the said Act.

Payments at the rate of 30/- per week (being the maximum amount which the plaintiff could recover under the said Act) were, in fact, made for a period of about 15 months commencing shortly after the accident and continuing down to the 5th June, 1942.

The money was brought each week by a fellow-workman of the plaintiff and handed over to the plaintiff's wife. Receipts were signed each week in the name of the plaintiff, acknowledging receipt of these moneys as and for compensation under the Workmen's Compensation Act. Though signed in the name of the plaintiff, the receipts were, in fact, signed by the plaintiff's wife or her mother, with the possible exception of one receipt which plaintiff, in his evidence, seems to have admitted signing himself.

It was admitted by the plaintiff that he knew of these payments and that they were being made to his wife with his authority and approval. On one occasion, viz., the 3rd October, 1941, the plaintiff wrote to the defendants in the following terms:—"Kindly let Mrs. Walsh have my money to bring down to me." Plaintiff admits that he signed this letter himself.

After these payments had continued for some months, plaintiff's solicitors, on the 31st July, 1941, wrote a letter to the defendant's solicitors, in which the following paragraph occurs:—

"Our client has been receiving the usual weekly compensation and we think that this should be continued. The amount can be deducted later from any damages recovered by our client."

In his reply, dated the 1st August, 1941, the defendants' solicitors stated:—

"We do not propose to make any comment for the moment on the second paragraph of your letter. It would seem to us that your client has already elected to accept the position under the Workmen's Compensation Act and we must reserve our clients' rights in regard to this."

Notwithstanding this correspondence, the payments, as already stated, were continued until the following June and were received in the same manner as theretofore.

A considerable portion of the plaintiff's evidence at the trial is concerned with these weekly payments. In his direct examination he denies having made any claim for compensation under the Workmen's Compensation Act, but admits that his wife received the weekly sums from the defendants. In the course of his cross-examination, the following passages appear:—

434. Q.—"But you got all the monies for which these are receipts?"

A.—"My wife got it."

435. Q.—"You knew they were giving it?"

A.—"She was taking it while I was in hospital."

439. Q.—"You knew what you were getting the money for, did you?"

A.—"They were paying out 30/- a week. My wife signed for it and also her mother after the accident."

440. Q.—"Leave out for the moment who signed it. You knew you were getting a weekly payment?"

A.—"Yes. I knew they were paying out 30/- a week."

441. Q.—"You had heard of a thing called workmen's compensation for accidents?"

A.—"Yes."

442. Q.—"You knew that...