Alternative remedies

(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 claim compensation under this Act, or take proceedings independently of this Act, but the employer shall not be liable to pay compensation under this Act and damages. (2) If, within the time limited in this Act for taking proceedings, an action is brought to recover damages independently of this Act for injury caused by an accident, and it is determined in such action or on appeal that the injury is one for which the employer is not liable in such action, but that he would have been liable to pay compensation under this Act, the action shall be dismissed; but the court in which the action is tried, or, if the determination is the determination on an appeal (by either party) by an appellate court, that court shall, if the plaintiff so choose, proceed to assess such compensation, but may deduct from such compensation all or part of the costs which in its judgment, have been caused by the plaintiff bringing the action instead of proceeding under this Act. (3) The court or appellate court may, instead of itself assessing such compensation, remit the case to the magistrate for the assessment of the compensation, and in such case may order the magistrate to deduct from the amount of 42 compensation assessed by him all or part of the costs described in subsection (2) of this section. (4) In any proceedings under subsection (2) of this section, when the court or appellate court assesses the compensation, it shall give a certificate of the compensation it has awarded and the directions it has given as to the deduction of costs, and such certificate shall have the force and effect of and shall be registered as an agreement under this Act.