Clause 33

Nothing contained in this Act shall be deemed to confer any right to compensation on a workman in respect of any injury if he has instituted an action for damages in respect of that injury in any court against his employer or if he has recovered damages in respect of that injury in any court from his employer, and no action for damages shall be maintainable in any court by a workman against his employer in respect of any injury —

If an action is brought within the time specified in section 11 in any court to recover damages independently of this Act for injury caused by any accident and it is determined in the action or on appeal that the injury is one for which the employer is not liable but that he would have been liable to pay compensation under the provisions of this Act, the action shall be dismissed; but the court shall, if the workman so chooses, proceed to assess such compensation and may deduct therefrom all or any part of the costs which, in its judgment, have been caused by the workman instituting the action instead of proceeding under this Act.

In any proceedings under subsection (2) when the court assesses the compensation, it shall give a certificate of the compensation it has awarded and the direction it has given (if any) as to the deduction of costs and such certificate shall have the same effect as a judgment of the court.