Young v Bristol Aeroplane Company Ltd

JurisdictionUK Non-devolved
JudgeViscount Simon,Lord Russell of Killowen,Lord Macmillan,Lord Porter,Lord Simonds
Judgment Date29 November 1945
Judgment citation (vLex)[1945] UKHL J1129-2
Date29 November 1945
CourtHouse of Lords
Bristol Aeroplane Company Limited

[1945] UKHL J1129-2

Viscount Simon

Lord Russell of Killowen

Lord Macmillan

Lord Porter

Lord Simonds

House of Lords

After hearing Counsel, as well on Tuesday the 24th, as on Wednesday the 25th, Thursday the 26th and Friday the 27th, days of July last upon the Petition and Appeal of Wilfred Young, of 16 Arundel Street, Burnley, in the County of Lancaster, praying, That the matter of the Order set forth in the Schedule thereto, namely, an Order of His Majesty's Court of Appeal of the 28th of July 1944, might be reviewed before His Majesty the King, in His Court of Parliament, and that the said Order might be reversed, varied or altered, or that the Petitioner might have such other relief in the premises as to His Majesty the King, in His Court of Parliament, might seem meet; as also upon the printed Case of Bristol Aeroplane Company, Limited, lodged in answer to the said Appeal; and due consideration had this day of what was offered on either side in this cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of His Majesty the King assembled, That the said Order of His Majesty's Court of Appeal, of the 28th day of July 1944, complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House: And (by consent) it is hereby Declared, That on the 3d of April 1942, the Appellant received personal injury by accident arising out of and in the course of his employment with the Respondents, and that the Appellant has claimed and received the payments due to him under the Workmen's Compensation Acts, 1925 to 1943, under which the Respondents admit their liability for the incapacity for work caused by the said personal injury, and is earning not less than his average pre-accident weekly earnings computed in accordance with the said Acts, but, inasmuch as it appears that there is a reasonable probability that further incapacity may result in the future from the said personal injury, it is Ordered, That, in such event, the Appellant shall be at liberty to apply to the appropriate County Court in accordance with the said Acts for further compensation thereunder: And it is also further Ordered, That the Appellant do pay, or cause to be paid, to the said Respondents the Costs incurred by them in respect of the said Appeal, the amount thereof to be certified by the Clerk of the Parliaments.

Viscount Simon

My Lords,


This is the appeal of the Plaintiff, in an action brought for damages at common law against his employers, the Respondents, for failure to fence dangerous machinery. The appeal is from a unanimous decision of the Court of Appeal reported in [1944] 1 K.B. 718. That Court was specially constituted to hear the Plaintiff's appeal from the judgment given against him by Mr. Commissioner Laski, K.C., at Manchester Assizes. Besides the Master of the Rolls (Lord Greene), who delivered the considered judgment of the whole Court, the Lords Justices Scott, Mackinnon, Luxmoore, Goddard, and du Parcq were parties to the decision. One of the conclusions reached in the judgment of the Master of the Rolls is that if the Court of Appeal, when sitting in one of its Divisions, has in a previous case pronounced on a point of law which necessarily covers a later case coming before the Court, the previous decision must be followed (unless, of course, it was given per incuriam, or unless the House of Lords has in the meantime decided that the law is otherwise), and that this application of the rules governing the use of precedents binds the full Court of Appeal no less than a division of the Court as usually constituted. Thus, the previous decisions of the Court of Appeal in Perkins v. Hugh Stevenson & Sons Ltd. [1940], 1 K.B. 56, and Selwood v. Townley Coal and Fireclay Co. [1940], 1 K.B. 180, upon the correctness of which the Respondents rely, but which the Appellant challenges, could not be overruled in that Court, and since these decisions were held to apply to the present case in a sense adverse to the Appellant, his appeal was necessarily dismissed.


The present appeal, therefore, is in substance, a submission that the decisions in Perkins' case and Selwood's case are wrong, or at any rate that they are not conclusive against the Appellant's claim. The question involves the interpretation and application of section 29 (1) of the Workmen's Compensation Act�a section which is in the same form as section 1 (2) ( b) of the original Act of 1896 and one which has given rise to many difficulties and to a multitude of decisions.


That enactment runs as follows:

"29.�(1) When the injury was caused by the personal negligence or wilful act of the employer or of some person for whose act or default the employer is responsible, nothing in this Act shall affect any civil liability of the employer, but in that case the workman may, at his option, either claim compensation under this Act or take proceedings independently of this Act; but the employer shall not be liable to pay compensation for injury to a workman by accident arising out of and in the course of the employment both independently of and also under this Act, and shall not be liable to any proceedings independently of this Act, except in case of such personal negligence or wilful act as aforesaid."


Before proceeding further, it is necessary to set out the essential facts in the present case.


On April 3rd, 1942, the Appellant lost three fingers of his left hand by amputation while operating a guillotine sheet-metal cutter in the Respondents' factory. It is not in dispute that this accident arose out of and in the course of his employment in such circumstances as to create a liability in the Respondents to pay compensation for his injury under section 1 of the Act.


On April 30th, 1942, the Appellant attended at the Respondents' works and received from a Mr. Howarth whose duty it was to attend, on the Respondents' behalf, to payments under the Workmen's Compensation Act, the sum of £6 15s. od., which amount is equal to the compensation under the Act due to the Appellant for the first four weeks. Thereafter, the Appellant attended at the works and was paid by Mr. Howarth, week after week, the sum of £1 15s. od. till the following October. On each occasion there was put before him a pay-sheet which plainly showed that these were payments under the Workmen's Compensation Act, and how they were calculated. On each occasion the Appellant signed the pay sheet "for payment received." Mr. Commissioner Laski found that the Appellant read the form and understood it, and accepted these payments knowing them to be made as compensation under the Act, though he did not in the first instance "make a claim for compensation 'as such'"


In the course of making and receiving these weekly payments, viz. on July 24th, 1942 (and apparently after the Respondents had been prosecuted and convicted for failing to fence the machineiy which had injured the Appellant), the Appellant's Solicitor wrote on his behalf claiming "compensation under the Workmen's Compensation Act and, alternatively, claiming damages". The Respondents replied admitting liability under the Act only, and pointed out that the Appellant "has been in receipt of compensation since his cessation of work following the injuries".


Notwithstanding this correspondence in July, the Appellant continued to draw his weekly compensation and the learned Commissioner finds ( a) that the Appellant between the time of the accident and July "did not know that he had a right under Section 29 (1) of the Workmen's Compensation Act to elect as between two alternative remedies", and ( b) inferentially, that he did know after July 24th, but nevertheless went on drawing his compensation money. Consequently, the learned Commissioner, following Perkins' case, felt constrained to hold that the option to sue independently of the Act had gone.


In Perkins' case, the injured workman had actually applied to his employers for compensation under the Act and was paid weekly sums accordingly for about a year, after which no further compensation was due as he had recovered from his injuries. About two months after the accident, however, his solicitor had written referring to his alternative claim apart from the Act and attempted unsuccessfully to secure that the weekly payments should be regarded as being made without prejudice to the alternative claim. The Court of Appeal held that mis alternative claim was barred, because from the date of the solicitor's letter the workman must be regarded as having material for exercising his "option" and as having exercised it; the employer had already been made liable under the Act and had paid in full all that the Act prescribed and could not, therefore, be also liable independently of the Act.


It is true that in the course of his judgment the Master of the Rolls expressed the view, at page 66, that "where the employer, in response to a claim under the Act, has made a payment of compensation under the Act, that payment discharges once and for ever, in whole or pro tanto, the statutory liability under the Act", and Finlay L.J. appears to agree with him. But this view is not essential to the decision, and the Master of the Rolls goes on to point out that in that case the workman has in fact exercised his option. The actual decision can be supported by reason of that circumstance, apart from the fact that the workman had claimed and received compensation without knowledge that another remedy was available to him if he chose to adopt it.


In Selwood's case, the workman had made no application for compensation, but he had received a number of weekly sums from his employers which were, as he knew, payments under the Act. Later, and while still gravely incapacitated, he...

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220 cases
3 books & journal articles
    • Singapore
    • Singapore Academy of Law Journal No. 2006, December 2006
    • 1 December 2006
    ...“A waiver must be an intentional act with knowledge of the circumstances” [emphasis added]. 13 Young v Bristol Aeroplane Company Limited [1946] AC 163 which concerned compensation under the Workmen’s Compensation Act 1925: “to make a choice the workman must be aware of his right to choose, ......
    • Nigeria
    • DSC Publications Online Sasegbon’s Judicial Dictionary of Nigerian Law. First edition W
    • 6 February 2019
    ...intention of rejecting." See: Lissenden v. C.A.V. Bosch Ltd. (1940) A.C 412 at 418 - 419 per Lord Maugham. Young v. Bristol Aeroplane Co. (1946) A.C 163 Lord Atkin. See also Banning v. Wright (1972) 1 W.L.R. 972 at 979 per Lord Hailsham. The defence of waiver is only available on a plea of ......
    • Nigeria
    • DSC Publications Online Nigerian Supreme Court Cases. 1961 Cases reported in 1961
    • 11 November 2022
    ...Bristol Aeroplane Co. (1944) K.B. 718; (1944) 2 All E.R. 293; 113 L.J.K.B. 513; 171 L.T. 113; (;0 T.L.R. 536; 88 Sol.J 332; affd. (1946) A.C. 163. 2. Osumanu v. Seidu, 1949, 12 W.A.C.A., 437. 30 3. Lagunju v. Olubadan in Council, 12 W.A.C.A., 223 and 406. Adekunle for Appellant. Thann......

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