July 28. LORD GREENE M.R. read the
judgment of the court in which he stated the facts and continued: After a very
careful review of the facts, the learned commissioner arrived at the following conclusions: (1.) That the plaintiff did not make a
claim for compensation (namely, compensation under the Workmen's Compensation
Act) “as such”; (2.) that the plaintiff could not be said to have exercised the
option given to him by s. 29, sub-s. 1, of the Act, since he did not know of
“his right to elect”; (3.) that “the plaintiff received the payments made to him
as compensation under the Workmen's Compensation Act,” and that “the payments
were paid to him as such.” We see no reason to differ from any of these
conclusions. The learned commissioner, having come to these conclusions,
considered himself bound by the authority of judgments of this court, in
particular those in Perkins v. Hugh Stevenson & Sons, Ld. [1940] 1 KB 56 , and Selwood v. Townley Coal & Fireclay Co. Ibid 180 , to hold that the third of his findings was fatal to the plaintiff's
claim. In so holding, we are of opinion that he was clearly right. Perkins'
case [1940] 1 KB 56 differed from the present case in that there the workman had claimed
compensation, but in Selwood's case Ibid 180 there had been no claim and no exercise by the workman of his option.
The court in Selwood's case Ibid 180 regarded this distinction as immaterial so far as concerned what was
referred to as “the second limb” of the sub-section, that is to say, the
sentence which begins with the words “but the employer shall not be liable”: see
specially the judgment of Slesser L.J. Ibid 184–6 . It is manifest from all the judgments in Selwood's case Ibid 180 that, in the view of the court, the decision which was then arrived at
followed logically and inevitably from the ratio decidendi in Perkins' case [1940] 1 KB 56 . As a result of these two decisions, therefore, it must be regarded as
having been decided by this court that a workman who has been paid compensation
under the Act, which he has knowingly accepted as such compensation, is thereby
precluded from recovering damages from his employers at common law.
We were reminded by counsel for the
plaintiff that in Unsworth v. Elder Dempster Lines, Ld. Ibid 658, 670 , one part of the reasoning on which the decision in Perkins' case [1940] 1 KB 56 had been based was criticized and doubted: see per MacKinnon L.J. Ibid 658, 670 and per Goddard L.J. Ibid 673 . That criticism in no way affects the validity of the decision in
Perkins' case fn11 , since, as both MacKinnon and Goddard L.JJ. pointed out, those
passages in the judgments which they regarded as open to doubt were not necessary to the decision and are to be regarded as obiter dicta. Mr.
Paull, for the plaintiff, while frankly conceding that the decisions to which we
have referred made his task in this court difficult, and, perhaps, impossible,
suggested that they might be treated as inconsistent with the decision of the
House of Lords in Kinneil Cannel & Coking Coal Co. v. Sneddon [1931] AC 575 , and for that reason ought not to be followed. It is a conclusive
answer to this submission that Kinneil's case [1931] AC 575 was cited to this court in Perkins' case&fn(2). Mr. Paull's
argument, therefore, involves a submission that in Perkins' case [1940] 1 KB 56 this court, with the relevant authorities before it, came to a wrong
decision. We will, however, add that we are of opinion that there is no
inconsistency between the decision of the House of Lords and those of this
court. The House of Lords in the Kinneil case [1931] AC 575 was dealing with the right of a widow to claim damages at common law on
behalf of her children and herself in respect of an accident which had already
been the foundation of a successful claim for compensation under the Workmen's
Compensation Act by another dependant. It was held that the claims of the widow
and children at common law could not be defeated by the act of somebody to whom
the common law remedy was not open. The House of Lords said nothing contrary to
the view that the second limb of the sub-section precluded a workman from
claiming damages after receiving compensation under the Act. Of this second limb
Lord Buckmaster said Ibid 580 : “The latter provision is intended to relate only to cases where the
proceedings are taken by the same persons and affects only the cases where the
workman proceeding under the statute had the option of proceeding either under
the statute or at common law.” For these reasons we are clearly of opinion that
the present case is covered by the earlier decisions of this court.
Our attention was called to the opinion
expressed by Lord Patrick in a case heard by him in the Court of Session in
Scotland on December 10, 1943: Brown v. William Hamilton & Co., Ld. Unreported . In that opinion Lord Patrick referred to Perkins ‘ [1940] 1 KB 56 and Selwood's cases [1940] 1 KB 180 and refused to follow them because he thought they were contrary to the
current of decision in Scotland, to the true intent of the Workmen's
Compensation Act, 1925, and to the proper construction of s. 29, sub-s. 1, of that Act. His criticism deserves the most careful
consideration, but, even if we were inclined to accept it, we should not, by
reason of it, be entitled to ignore the decisions in Perkins’ [1940] 1 KB 56 and Selwood's cases Ibid 180 , which, for reasons which we now proceed to state, are, in our
opinion, binding on us, and must, therefore, be followed.
We now turn to what is the more
important question raised by this appeal. When it first came on for hearing
before Lord Greene M.R., MacKinnon and Goddard L.JJ., Mr. Paull stated that,
unless he could establish that Perkins' case [1940] 1 KB 56 and Selwood's case Ibid 180 could not stand with the decision of the House of Lords in Kinneil's
case [1931] AC 575 , his only chance of succeeding lay in satisfying this court that those
two cases were wrongly decided and that he wished to argue that this court was
not bound to follow them. The question thus raised as to the jurisdiction of
this court to refuse to follow decisions of its own was obviously one of great
general importance and directions were given for the appeal to be argued before
the full court. It is surprising that so fundamental a matter should at this
date still remain in doubt. To anyone unacquainted with the rare cases in which
it has been suggested or asserted that this court is not bound to follow its own
decisions or those of a court of co-ordinate jurisdiction the question would, we
think, appear to be beyond controversy. Cases in which this court has expressed
its regret at finding itself bound by previous decisions of its own and has
stated in the clearest terms that the only remedy of the unsuccessful party is
to appeal to the House of Lords are within the recollection of all of us and
numerous examples are to be found in the reports. When in such cases the matter
has been carried to the House of Lords it has never, so far as we know, been
suggested by the House that this view was wrong and that this court could itself
have done justice by declining to follow a previous decision of its own which it
considered to be erroneous. On the contrary, the House has, so far as we are
aware, invariably assumed and in many cases expressly stated that this court was
bound by its own previous decision to act as it did. The attitude both of this
court and of the House of Lords is so well-known that citations are scarcely
necessary, but we take three modern examples at random. The first is Produce
Brokers Co. v. Olympia Oil & Cake Co. (1915) 21 Com Cas 320 , in which Buckley L.J. began his judgment as follows (1915) 21 Com Cas 322 : “I am unable to adduce any reason to show that the decision which I
am about to pronounce is right. On the contrary, if I were free to follow my own
opinion, my own powers of reasoning such as they are, I should say that it is
wrong. But I am bound by authority — which, of course, it is my duty to follow —
and, following authority, I feel bound to pronounce the judgment which I am
about to deliver”
[1908] 2 KB 907in the Court of Appeal . Phillimore L.J. and Pickford L.J. similarly expressed themselves to
be bound by previous decisions of this court with which they did not agree. The
decision was reversed by the House of Lords [1916] 1 AC 314; 21 Com Cas 331 . The second example is Velasquez, Ld. v. Inland Revenue
Commissioners
[1914] 3 KB 458 where this court held itself bound by a previous decision of its own
which, it considered, had not been overruled by an intervening decision of the
House of Lords. Lord Cozens-Hardy M.R., said Ibid 461 : “But there is one rule by which, of course, we are bound to abide —
that when there has been a decision of this court upon a question of principle
it is not right for this court, whatever its own views may be, to depart from
that decision. There would otherwise be no finality in the law. If it is
contended that the decision is wrong, then the proper course is to go to the
ultimate tribunal, the House of Lords, who have power to settle the law and hold
that the decision which is binding upon us is not good law.” The correctness of
the decision in Velasquez's case
[1914] 3 KB 458 was impugned in English Scottish & Australian Bank, Ld. v. Inland
Revenue Commissioners [1932] AC 238 . This court had held that it was bound to follow Velasquez's case
[1914] 3 KB 458 , and in the House of Lords Lord Buckmaster said Ibid 242 that it was right in so holding. In the result, the appeal was allowed
and Velasquez's case
[1914] 3 KB 458 overruled. This was a strong case since, even before the question was
set at rest by the House of Lords, Velasquez's case
[1914] 3 KB 458 was generally regarded as having been wrongly decided. The third
example is the very recent one of Perrin v. Morgan
[1943] AC 399 There this court held itself bound by previous decisions to give a
narrow construction to the word “money” in a will. In the House of Lords
Viscount Simon L.C., said Ibid 405 that this court “could take no other course than follow and apply the rule of
construction by which, owing to previous decisions of courts of co-ordinate
jurisdiction, it was bound.” It is true that in this and similar cases the court
which held itself to be bound by previous decisions consisted of three members
only, but we can find no warrant for the argument that what is conveniently but
inaccurately called the full court has any greater power in this respect than a
division of the court consisting of three members only.
The Court of Appeal is a creature of
statute and its powers are statutory. It is one court though it usually sits in
two or three divisions. Each division has co-ordinate jurisdiction, but the full
court has no greater powers or jurisdiction than any division of the court. Its
jurisdiction is mainly appellate, but it has some original jurisdiction. To some
extent its decisions are final (for example, in appeals in bankruptcy and from
the county courts), but in the majority of cases there is an appeal from its
decisions to the House of Lords either with the leave of the Court of Appeal or
of the House of Lords. Neither in the statute itself nor (save in two cases
mentioned hereafter) in decided cases is there any suggestion that the powers of
the Court of Appeal sitting with six or nine or more members are greater than
those which it possesses when sitting as a division with three members. In this
respect, although we are unable to agree with certain views expressed by Greer
L.J. [1938] 2 KB 637, 644 as will presently appear, we think that he was right in saying that
what can be done by a full court can equally well be done by a division of the
court. The corollary of this is, we think, clearly true, namely, that what
cannot be done by a division of the court cannot be done by the full
court.
In considering the question whether or
not this court is bound by its previous decisions and those of courts of
co-ordinate jurisdiction, it is necessary to distinguish four classes of case.
The first is that with which we are now concerned, namely, cases where this
court finds itself confronted with one or more decisions of its own or of a
court of co-ordinate jurisdiction which cover the question before it and there
is no conflicting decision of this court or of a court of co-ordinate
jurisdiction. The second is where there is such a conflicting decision. The
third is where this court comes to the conclusion that a previous decision,
although not expressly overruled, cannot stand with a subsequent decision of the
House of Lords. The fourth (a special case) is where this court comes to the conclusion that a previous
decision was given per incuriam. In the second and third classes of case it is
beyond question that the previous decision is open to examination. In the second
class, the court is unquestionably entitled to choose between the two
conflicting decisions. In the third class of case the court is merely giving
effect to what it considers to have been a decision of the House of Lords by
which it is bound. The fourth class requires more detailed examination and we
will refer to it again later in this judgment.
For the moment it is the first class
which we have to consider. Although the language both of decision and of dictum
as well as the constant practice of the court appears to us clearly to negative
the suggested power, there are to be found dicta, and, indeed, decisions, the
other way. So far as dicta are concerned, we are, of course, not bound to follow
them. In the case of decisions we are entitled to choose between those which
assert and those which deny the existence of the power. In recent times the
question was discussed obiter in Newsholme Bros. v. Road Transport & General
Insurance Co. [1929] 2 KB 356 . In that case Scrutton L.J. said Ibid 375 : “The decision of the Court of Appeal on fact is not binding on any
other court, except as between the same parties. When the decision is that from
certain facts certain legal consequences follow, the decision is, I think,
binding on the Court of Appeal in any case raising substantially similar facts,”
but Greer L.J. in the same case said Ibid 384 : “I should like to point out this fact, that [this court] has, at
least on two occasions, sitting as a full court, differed from a previous
decision by the same court: and it seems to me that if that is right, it is
equally right to say that, sitting with a quorum of three judges, it has exactly
the same power as if it were sitting with six judges, though it would only be in
most exceptional cases that those powers would be exercised.” In In re
Shoesmith [1938] 2 KB 637, 644 , Greer L.J. said: “I wish to repeat what I said in the course of the
argument, that the court has more than once, sitting as a court with all its six
members, decided that it can overrule a decision of the Court of Appeal which
has held the field for a number of years. If the Court of Appeal, sitting with
its six members, can do so, equally a court sitting with a quorum of members can
do the same thing.” It is noteworthy that the substantial question in Newsholme Bros. v. Road Transport & General Insurance Co. [1929] 2 KB 356 was, not whether the Court of Appeal had jurisdiction to overrule a
previous decision, but how it should exercise its choice between apparently
irreconcilable decisions given by it previously. The two decisions mentioned by
Greer L.J. in the passage first quoted are Kelly & Co. v. Kellond
20 QB D 569 , and Wynne-Finch v. Chaytor
[1903] 2 Ch 475 In the former case Lord Esher said 20 QB D 572 : “This court is one composed of six members, and if at any time a
decision of a lesser number is called in question, and a difficulty arises about
the accuracy of it, I think this court is entitled, sitting as a full court, to
decide whether we will follow or not the decision arrived at by the smaller
number.” This dictum of Lord Esher was not assented to by Fry L.J. who said Ibid 574 : “As to the power of this court when sitting as a full court to
overrule the decision of a court consisting of a smaller number, I do not think
it is necessary to give an opinion.” It is not very clear what view was taken by
Lopes L.J., the other member of the court. He said Ibid 575 : “I do not desire to express an opinion as to what is the power of a
full Court of Appeal in respect of a decision of three of their number, but I
understand that the full court was called together in Ex parte Stanford (1886) 17 QB D 259 , to consider the question arising in that case, and to revise and
reconsider any decision touching the point in that case which had been
previously laid down.” Lower down on the page he is reported as having said
that, if the earlier decision decided what was contended for, it was overruled
by the later decision, a view which seems inconsistent with what he said in the
passage quoted. It is to be observed that the question in Kelly & Co. v.
Kellond
20 QB D 569 also was not whether a particular decision should be overruled, but
which of two inconsistent decisions should be followed. The two decisions in
question were Roberts v. Roberts (1884) 13 QB D 794 and Ex parte Stanford (1886) 17 QB D 259 , the latter being a decision of the full Court of Appeal, and the
court followed Ex parte Stanford (1886) 17 QB D 259 . Although the decision in Roberts v. Roberts (1884) 13 QB D 794 was cited during the hearing of Ex parte Stanford (1886) 17 QB D 259 by the full court the decision was not commented on or even referred to
in the judgment. It appears to have been open to the court in Kelly & Co. v.
Kellond
20 QB D 569 to choose between the two decisions but, of course, in such circumstances the decision of the full court
would be likely to carry greater weight than that of a division of the court. In
Wynne-Finch v. Chaytor
[1903] 2 Ch 475 the decision was on a point of practice, the question being whether an
application ought to have been made to the Chancery Division to set aside a
judgment directed to be entered by an official referee to whom the whole action
had been referred, or whether the proper procedure was by way of appeal to the
Court of Appeal. The question was directed to be argued before the full court.
Reference was made to Daglish v. Barton
[1900] 1 QB 284 where Stirling L.J., who delivered the judgment of the court, said [1903] 2 Ch 485 : “With the greatest respect, we are unable to agree with Daglish v.
Barton
[1900] 1 QB 284 , and think that it ought not to be followed; and it is, therefore,
overruled.” It may be that the true explanation of this decision is that the
court came to the conclusion that the decision in Daglish v. Barton
[1900] 1 QB 284 was manifestly incorrect and contrary to the plain words of the
statute. Nevertheless, the case is, we think, an authority in favour of the
proposition that the court has power to overrule its previous decisions.
Certainly it cannot be said that there is any statutory right of appeal from a
decision of the Court of Appeal to the full court, although on occasions where
there has been a conflict caused by the existence of inconsistent earlier
decisions the court has ordered the case to be argued before a full court. Apart
from a recent case which falls under the fourth class referred to above, we only
know of one other case in which the Court of Appeal appears to have exercised
the suggested power. That was Mills v. Jennings (1880) 13 Ch D 639 . It is to be noted that the earlier authority which the court refused
to follow was a decision, not of the Court of Appeal, but of the old Court of
Appeal in Chancery. Indeed, this fact was given as the justification of the view
which the Court of Appeal then took. Cotton L.J. in delivering the judgment of
the court, said Ibid 648 :“We think that we are at liberty to reconsider and review the decision
in that case as if it were being re-heard in the old Court of Appeal in
Chancery, as was not uncommon.”
It remains to consider the quite recent
case of Lancaster Motor Co. (London) v. Bremith, Ld. [1941] 1 KB 675 , in which a court consisting of the present Master of the Rolls,
Clauson L.J. and Goddard L.J., declined to follow an earlier decision of a court consisting of Slesser L.J. and Romer L.J. In Gerard v Worth of Paris Ld[1936] 2 All ER 905 . This was clearly a case where the earlier decision was given per
incuriam. It depended on the true meaning (which in the later decision was
regarded as clear beyond argument) of a rule of the Supreme Court to which the
court was apparently not referred and which it obviously had not in mind. The
Rules of the Supreme Court have statutory force and the court is bound to give
effect to them as to a statute. Where the court has construed a statute or a
rule having the force of a statute its decision stands on the same footing as
any other decision on a question of law, but where the court is satisfied that
an earlier decision was given in ignorance of the terms of a statute or a rule
having the force of a statute the position is very different. It cannot, in our
opinion, be right to say that in such a case the court is entitled to disregard
the statutory provision and is bound to follow a decision of its own given when
that provision was not present to its mind. Cases of this description are
examples of decisions given per incuriam. We do not think that it would be right
to say that there may not be other cases of decisions given per incuriam in
which this court might properly consider itself entitled not to follow an
earlier decision of its own. Such cases would obviously be of the rarest
occurrence and must be dealt with in accordance with their special facts. Two
classes of decisions per incuriam fall outside the scope of our inquiry, namely,
those where the court has acted in ignorance of a previous decision of its own
or of a court of co-ordinate jurisdiction which covers the case before it — in
such a case a subsequent court must decide which of the two decisions it ought
to follow; and those where it has acted in ignorance of a decision of the House
of Lords which covers the point — in such a case a subsequent court is bound by
the decision of the House of Lords.
On a careful examination of the whole
matter we have come to the clear conclusion that this court is bound to follow
previous decisions of its own as well as those of courts of co-ordinate
jurisdiction. The only exceptions to this rule (two of them apparent only) are
those already mentioned which for convenience we here summarize: (1.) The court
is entitled and bound to decide which of two conflicting decisions of its own it
will follow. (2.) The court is bound to refuse to follow a decision of its own
which, though not expressly overruled, cannot, in its opinion, stand with a
decision of the House of Lords.
(3.) The court is not bound to follow a
decision of its own if it is satisfied that the decision was given per
incuriam.
I should perhaps add, speaking for
myself individually, with regard to the observations in Unsworth's case [1940] 1 KB 658 mentioned in this judgment, that I have carefully considered my own
observations there mentioned in Perkins' case [1940] 1 KB 56 and I have come to the conclusion that the criticism of them in
Unsworth's case [1940] 1 KB 658 is justified, and that what I said was wrong. What I said there formed
no part of the ratio decidendi, as will appear from a reading of the judgment,
and does not affect its validity for that reason.
