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|Judgments - Jameson and Another v. Central Electricity Generating Board and Others
Lord Hope of Craighead Lord Clyde
I had the advantage of reading in draft the speech of my noble and learned friend, Lord Hope of Craighead. I agree with it and for the reasons which he gives, I would allow the appeal.
LORD LLOYD OF BERWICK
David Allen Jameson was employed by Babcock Energy Ltd. ("Babcock") between October 1953 and October 1958. In the course of his employment he worked at (among other places) two power stations owned and occupied by the defendants, the Central Electricity Generating Board ("C.E.G.B."). In February 1987 Mr. Jameson developed symptoms of malignant mesothelioma. On 24 April 1988 he died. Shortly before his death, he brought proceedings against his employers. The value of his claim as found by the judge, Sir Haydn Tudor Evans, and as now agreed between the parties, was £130,000. On 19 April the claim was settled for £80,000 plus costs. The settlement was later embodied in a Tomlin order dated 29 April 1988.
On 2 April 1989 the executors of Mr. Jameson's estate brought these proceedings against C.E.G.B. pursuant to the Fatal Accidents Act 1976, as amended, alleging negligence and breach of statutory duty. According to the particulars of negligence Mr. Jameson was exposed to substantial quantities of asbestos dust while working at Battersea Power Station between October 1953 and April 1954, and again at Castle Donnington Power Station between October 1957 and October 1958. The value of Mrs. Jameson's dependency, assessed on a conventional basis, has been agreed by the parties at £142,000. It is argued on behalf of C.E.G.B. that the claim under the Fatal Accidents Act ("the widow's claim") is now barred on the ground that Mr. Jameson's claim against Babcock was settled before his death, even though that claim was settled for less than two-thirds of Mr. Jameson's loss. If that is the law, then I would regard the result as most unjust.
However a judge with unrivalled experience in personal injuries litigation has held that it is not the law. In a careful judgment in which he dealt with all the authorities, including the decision of Sheriff Sir Allan Walker Q.C. in Carrigan v. Duncan  S.L.T. (Sh. Ct.) 33 (the authority on which the appellants chiefly rely) he has held that the widow's claim is not barred, because Mr. Jameson did not, on the agreed facts, recover the whole of his loss. The decision of the judge has been upheld by the Court of Appeal in an equally impressive judgment. I can find no error in either judgment, and would be content to adopt Auld L.J.'s judgment as my own. But it is right that I should spell out my reasons briefly in my own words.
There are two questions for decision, and it is best to keep them separate. The first is whether Mr. Jameson would himself have been able to maintain an action against C.E.G.B. if he had not died. If not, then clearly the widow's claim under the Fatal Accidents Act must fail.
The second question is whether if the widow is entitled to bring her claim under the Fatal Accidents Act it makes any difference that she is the beneficiary under her husband's estate. It is said that if she receives the dependency of £142,000 in full she will be recovering £80,000, or thereabouts, twice over; once as beneficiary under her husband's will, and once as part of the dependency. But as against that, section 4 of the Fatal Accidents Act specifically provides that benefits accruing to any person from the estate of the deceased are to be disregarded in assessing damages under the Act.
As to the first question, the starting point is to distinguish between joint torts and concurrent torts. It is agreed between the parties that we are here concerned with concurrent torts, and not joint torts; that is to say, the claim against Babcock and the claim against C.E.G.B. give rise to separate causes of action, each contributing to the same damage.
On the face of it, it would seem strange and unjust that a plaintiff who settles a claim against A in respect of one cause of action should be unable to pursue a claim in respect of a separate cause of action against B. Of course if the plaintiff recovers the whole of his loss from A, then he will have nothing left to recover against B. The payment received from A will have "satisfied" his loss, though I would for my part prefer not to use the term "satisfy" in this context, in order to avoid confusion with the quite different concept of accord and satisfaction. In the present case Mr. Jameson agreed to accept £80,000 plus costs in settlement of his claim against Babcock. If during his lifetime he had started a fresh action against Babcock he would have been met with the defence of accord and satisfaction, the satisfaction being the £80,000 which he agreed to accept in settlement of his claim against Babcock. But there would have been nothing whatever to stop him claiming against C.E.G.B. during his lifetime, unless, of course, £80,000 had been the full amount of his loss. But it was not. On the agreed facts it was less than two-thirds of his loss.
It is a matter of every day occurrence in personal injury litigation that a plaintiff will begin an action against two concurrent tort feasors. He may have a strong case against the first defendant, and a weak case against the second. In those circumstances he may be well advised to accept a payment into court made by the second defendant, and continue against the first.
Thus in Townsend v. Stone Toms & Partners  1 W.L.R. 1153 (a case in contract, but the same principle applies) the plaintiffs brought proceedings against a builder for defective work, and against the architect for negligence in supervising the work. The builder made a payment into court of £30,000 "in satisfaction of all the causes of action in respect of which the plaintiffs claim." It was argued that the claim against the architect should be stayed by virtue of R.S.C., Ord. 22, 3(4). The argument was rejected. Eveleigh L.J. said at p. 1161F:
So the case against the architect continued.
But when the case came on for trial, it was found as a fact that the £30,000 paid into court was more than sufficient to cover the whole of the loss suffered by the plaintiffs in respect of the overlapping claims. So the plaintiffs' claim against the architect in respect of the overlapping claims was dismissed, and the judge's decision to that effect was upheld by the Court of Appeal in Townsend v. Stone Toms & Partners (No. 2) (1984) 27 B.L.R. 26.
So the acceptance by a plaintiff of payment into court by one concurrent tort feasor does not operate as a bar to proceedings against other concurrent tort feasors, unless the plaintiff has recovered the whole of his loss. Exactly the same applies where judgment has been entered in respect of the amount paid into court (as happened in Townsend v. Stone Toms), or where a claim is settled without any payment into court; and exactly the same applies whether the claims against the other tort feasors are made in the same set of proceedings or in subsequent proceedings.
It follows that Mr. Jameson would in my opinion have been entitled to commence proceedings against C.E.G.B. during his lifetime for the whole of his loss, but he would have had to give credit for the £80,000 recovered from Babcock.
It is said that if Mr. Jameson had proceeded to judgment against Babcock and recovered £120,000, then he would not have been able to challenge that figure in other proceedings before another judge. The same ought to be true, so it is said, where Mr. Jameson has accepted £80,000 "in full and final settlement and satisfaction in all the causes of action in respect of which the plaintiff claims." The agreement stands in place of the judgment. But with great respect, the two cases are entirely different. The £80,000 is not an agreed figure of the plaintiff's loss, corresponding to the judge's award of £120,000. It is a figure which reflects the plaintiff's chances of success in the action. By the time the judge comes to make his award, the action has, ex hypothesi, succeeded. So there is no room for any discount. Like Auld L.J. I can see no basis in law or common sense why the settlement of a claim in respect of one cause of action at 50 per cent. of the plaintiff's loss, so as to reflect the chances of success against that defendant, should impose a ceiling on the damages recoverable in respect of a separate cause of action against a different defendant.
A part of the difficulty may lie in the use of the word "value" in this connection. When it is said that a claim has an agreed value of £80,000 it may mean one of two things; it may mean that the plaintiff's loss is agreed at £80,000. Or it may mean that his claim is worth £80,000 after taking account of the chances of success. In personal injury cases it frequently happens that quantum is agreed subject to liability. But since very few claims are settled at 100 per cent., I would take a great deal of persuading that in agreeing a figure of £80,000 the parties were agreeing a figure for Mr. Jameson's loss, which would then somehow enure to the benefit of concurrent tort feasors. Nor can I see any reason for implying a term in the settlement agreement that Mr. Jameson would not proceed against other tort feasors who might or might not bring contribution proceedings against Babcock. Babcock were professionally advised. If they had reason to fear contribution proceedings by a concurrant tortfeasor they could have protected themselves by an express term in the settlement agreement. But they did not. On the other hand if the appellants are right, it will mean that in every case plaintiffs will have to insist on an express term reserving the right to proceed against other concurrent tort feasors, even though there might be no other tort feasors in mind at the time. The requirment for such a term would be to reintroduce a trap of just the kind which Parliament and the courts have consistently tried to eradicate in the field of joint and several torts over many years: See the passage quoted in the court below from the judgment of Steyn L.J. in Watts v. Aldington The Times, 16 December 1993; Court of Appeal (Civil Division) Transcript No. 1578 of 1993, and the illuminating judgment, Neill L.J. in the same case.
It is said that policy favours finality. So it does. But I do not see how it can make the settlement agreement mean something which it does not say, and on one view could not say.
As for Carrigan v. Duncan the explanation must be that the pursuer had recovered the whole of his loss in the earlier proceedings. As Auld L.J. pointed out at p. 339, there was no evidence in that case that the amount of the payment accepted by the pursuer was less than his loss. If that is not the explanation, then the case cannot stand against the great weight of English authorities cited by Sir Haydn Tudor Evans and the Court of Appeal.
For the above reasons, I would not for my part doubt that Mr. Jameson would have been entitled to commence proceedings against C.E.G.B. during his lifetime for the whole of his loss, but he would have been bound to give credit for the £80,000 received from Babcock.
I turn to the second question. Again it seems to admit of a straightforward answer. Section 4 of the Fatal Accidents Act provides that benefits accruing to a person from the estate of the deceased are to be disregarded. Parliament must therefore have contemplated that in a case where the person who would benefit under the Fatal Accidents Act is also the beneficiary under the will, that person may be entitled to a double recovery. It is unnecessary to consider why Parliament should have so provided. The language of the section is precise and clear. On the face of it, therefore, Mrs. Jameson is entitled to recover £142,000 in respect of her dependency, and to keep the £80,000 from her late husband's estate. It may be that a decision to that effect would work hardly on Babcock; but not so hardly as a decision the other way would work on Mrs. Jameson. Section 4 of the Act does not permit a half-way house.
It hardly needs saying that the answer to the second question cannot throw any light on the answer to the first question.
Conscious, perhaps, of the weakness of their argument on this part of the case, the appellants allege that the current proceedings are an abuse of process. But the judge heard the witnesses over a period of ten days. He expressly acquitted Mr. Jameson, and his advisors, of having a "secret reservation" when they entered into the settlement agreement, or of planning any procedural device. In the face of those findings the allegation of abuse of process should have been abandoned.
For the above reasons, and the reasons given by Sir Haydn Tudor Evans and Auld L.J. in the Court of Appeal, with which I agree, I would dismiss the appeal.
I had the advantage of reading in draft the speech of my noble and learned friend, Lord Hope of Craighead. I agree with it and for the reasons which he gives, I would allow the appeal.
LORD HOPE OF CRAIGHEAD
The dispute which has arisen in this case concerns the effect of the settlement of an action of damages for personal injury where the injured party has sued only one of two or more tortfeasors who by their separate acts have caused the same harm. In such circumstances each tortfeasor is liable to the injured party jointly and severally with the other tortfeasors for the whole amount of his loss. The injured party, having brought his action against only one of them, has agreed to accept a sum of money from that tortfeasor in full and final settlement and satisfaction of all the causes of action in his claim against him. But it is said that there is a shortfall between the amount which he has agreed to accept under the settlement and the full value of the claim. Is he able then to maintain and recover damages from the other tortfeasors in order to make up this shortfall, or is he disabled from doing so by his settlement with the first tortfeasor? And, if the effect of the settlement is to discharge the liability of the other tortfeasors, does it have this effect as soon as the agreement is made, or is this effect suspended until the settlement has been performed by payment to the injured party of the full amount of the agreed sum?
These questions have not been the subject of decision in any of the relevant English authorities--no doubt because the practice is for concurrent tortfeasors to be sued in the same action where by their separate acts they have caused the same harm. They have arisen as preliminary issues in this case, where the second action was commenced after the injured party's death.
The plaintiffs, who are the deceased's executors, brought the action by writ against the defendant, the Central Electricity Generating Board ("the C.E.G.B.") on behalf of his widow under the Fatal Accidents Act 1976 for damages for her loss of dependency. The deceased had brought a separate action before he died against his employer Babcock Energy Limited ("Babcock") for damages for personal injury due to asbestos exposure at various places where he was required to work during his employment, including the defendant's premises. On 30 March 1988 Babcock paid the sum of £75,000 into court. On 19 April 1988 the deceased's solicitors agreed to accept Babcock's offer of £80,000 in settlement of the claim. On the following day they sent to Babcock's solicitors a draft Tomlin order which stated that it had been agreed that that sum was to be paid "in full and final settlement and satisfaction of all the causes of action in respect of which the plaintiff claims in the statement of claim." On 21 April 1988 Babcock's solicitors returned the draft order to the deceased's solicitors endorsed with their consent. The sum which was still due to be paid to the deceased under the settlement was £5,000, plus costs in the sum of £15,750. On 24 April 1988 the deceased died. On 29 April 1988 the action was stayed by way of the Tomlin order. On the same date Babcock's solicitors sent to the deceased's solicitors a cheque in settlement of their costs, and a further cheque for the remainder of the money payable to the deceased in full and final settlement and satisfaction of the claim. So, although the settlement had been agreed to before the deceased died, performance of it was not completed until after his death.
The action which is the subject of this appeal was commenced on 2 April 1989. Pursuant to an order which was made on 7 April 1993 Babcock were joined as a third party. On 31 March 1995 Sir Haydn Tudor Evans, sitting as a judge of the Queen's Bench Division, gave judgment on a number of preliminary issues. He held that the plaintiffs were entitled to maintain the present action on behalf of the first named plaintiff under the Fatal Accidents Act 1976. He also held that the C.E.G.B. was entitled to maintain proceedings against Babcock for contribution under the Civil Liability (Contribution) Act 1978. Appeals against that decision by both the C.E.G.B. and Babcock were dismissed by the Court of Appeal (Nourse and Auld L.JJ. and Sir Patrick Russell) on 13 February 1997. Babcock did not seek leave to appeal against that decision, so no question now arises as to the entitlement of the C.E.G.B. to maintain contribution proceedings against Babcock. The principal issue in this appeal is whether the plaintiffs are entitled to maintain these proceedings against the C.E.G.B. It has been assumed that during the periods when he worked at their premises the deceased was exposed to asbestos as a result of breach of duty both on the part of Babcock and the C.E.G.B., and the trial of the preliminary issues proceeded on the basis that the C.E.G.B. and Babcock were concurrent tortfeasors. We are concerned in this case not with an accord and satisfaction which extinguishes the liability in tort of joint tortfeasors, but with the question whether the liability of concurrent tortfeasors for the same harm is disharged by a settlement which has been entered into with one of them.
The questions which arise as to the effect of a settlement with one tortfeasor in an action with the other concurrent tortfeasors are relevant to this case because, in order to succeed in their claim against the defendant under the Fatal Accidents Act 1976, the plaintiffs must satisfy the requirements of section 1(1) of that Act, as substituted by section 3(1) of the Administration of Justice Act 1982. The substituted section 1(1) provides:
The plaintiffs must show (a) that the death was caused by a wrongful act, neglect or default which would, if death had not ensued, have entitled the deceased to maintain an action and recover damages in respect thereof and (b) that the defendant is a person who would have been liable, if death had not ensued, to the deceased's action of damages. It is the second of these two points which is in issue in this case.
In the ordinary case, where the deceased has died without having first brought an action of damages, the application of this provision will produce a fair result and ought not to give rise to any difficulty. But the question whether the plaintiffs can satisfy its requirements has an additional significance in this case. This is because section 4 of the Act of 1976, as substituted by section 3(1) of the Administration of Justice Act 1982, provides that in assessing damages in respect of a person's death in an action under that Act the benefits which have accrued to any person from his estate or otherwise as a result of his death shall be disregarded. The first named plaintiff has inherited the whole of the sum of £80,000 which was received from Babcock under the settlement of the deceased's claim together with the remainder of the deceased's estate. As this is a benefit which accrued to her as a result of the death it must be disregarded. So the C.E.G.B. cannot take into credit, by way of set off against any liability to the plaintiffs in this action, the amount which was paid to the deceased in order to settle his claim against Babcock.
The situation which has arisen here may be summarised in this way. If the deceased would have been entitled to maintain an action and to recover damages from the C.E.G.B. notwithstanding his settlement with Babcock, the plaintiffs will be entitled not only to recover damages from the C.E.G.B. but to do so to the extent of the full amount of their claim without any set off for the damages which the deceased has already received under the settlement. The C.E.G.B. for its part will be entitled to maintain proceedings under section 1(1) of the Civil Liability (Contribution) Act 1978 against Babcock for a contribution towards the sum paid it to the plaintiffs in this action, notwithstanding the fact that Babcock has already entered into a full and final settlement of the deceased's claim against it. Thus Babcock, having agreed to a full and final settlement of the deceased's claim of damages and having implemented that settlement, will be exposed to a claim for a contribution towards a further payment in respect of the same claim which will be calculated as if that settlement had not been entered into. And the plaintiffs will be able to achieve full recovery for the first named plaintiff in respect of her claim of damages for loss of dependency, despite the fact that her loss has already been reduced by the amount which she has inherited from the deceased's estate which was paid in full and final settlement of his claim of damages for personal injury.