Arrale v Costain Civil Engineering Ltd
| Jurisdiction | England & Wales |
| Judge | THE MASTER OF THE ROLLS,LORD JUSTICE STEPHENSON,LORD JUSTICE GEOFFREY LANE |
| Judgment Date | 25 March 1975 |
| Court | Court of Appeal (Civil Division) |
| Date | 25 March 1975 |
[1975] EWCA Civ J0325-3
In The Supreme Court of Judicature
Court of Appeal
Appeal of plaintiff from Judgment of Mr. Justice Nield on 21st Deoember, 1973.
The Master of The Rolls (Lord Denning),
Lord Justice Stephenson and
Lord Justice Geoffrey Lane.
Mr. F. WHITWORTH, Q. C., and Mr. DAVID ASHTON (Instructed by Messrs. Gersten & Co.) appeared on behalf of the Appellant Plaintiff.
Mr. C. J. FRENCH, Q. C., and Mr. K. TOPLEY (instructed by Messrs. Stanleys & Simpson, North) appeared on behalf of the Respondent Defendants.
On 3rd July, 1968, Costains, the civil engineers, were building a harbour wall at Dubai in the Persian Gulf. One of their workmen was Mr. Abdullah Dohale Arrale, who came from Somaliland. He was one of a team engaged in driving piles with a big hammer suspended from a crane. In some way he got his arm into is dangerous place between the driving plate and the anvil. The hammer came down and crushed his left arm. He was taken to hospital, where his arm was amputated just below the shoulder.
Now in Dubai there was an Ordinance which provided for compensation for workmen who were permanently disabled as a result of their employment. This contained a schedule giving amounts. The figure for loss of the left arm was 50% of the death compensation. In Mr. Dohale's case, at his rate of wages, the compensation for loss of the left arm was 5,616 QDR in Dubai currency. That was £490.69 sterling.
The Senior Administrator for Costains in Dubai was Mr. Jepson. The accountant was Mr. Watson. He worked out the figures. After Mr. Dohale came out of hospital there was a meeting. Mr. Dohale brought with him a friend who was said to be a lawyer. There was some discussion which I will describe later. But the upshot of it was that Costains paid to Mr. Dohale the full amount provided by the Ordinance for loss of an arm (5616 QDR), and he signed a receipt in these words:-
"COSTAIN CIVIL ENGINEERING LIMITED
Port Rashid Harbour Project - Dubai
TRUCIAL STATES
WORKMEN'S COMPENSATION
ASDULLA DOHALE
Degree of Permanent Disability is assessed at 50% (Fifty per cent.). Reference Serial No. 13 Schedule 1. (Schedule of Permanent Disability, and percentage of Death Compensation, Government of Dubai).
Received this 19th day of August 1968 from Costain Civil Engineering Limited the sum of Q. D. R. 5,616.
(Qatar Dubai Riyals FIVE THOUSAND SIX HUNDRED AND SIXTEEN ONLY).
Which I accept in full satisfaction and discharge of all claims in respect of personal injury whether now or hereafter to become manifest arising directly or indirectly from an accident which occurred on 3rd July, 1968
Signed: ABDULLA DOHALE
on behalf of
COSTAIN CIVIL ENGINEERING LTD.
Witness: Amember of the Costain Group."
He was also paid sick pay amounting to 648 Q. D. R. for the time he was off work.
Thereafter Costains employed Mr. Arrale as a traffic controller at his old wages. But in October 1969 he left to rejoin his family in Somaliland. Costains paid his passage home and asked the British Embassy to find him suitable work: because, despite his disability, "he is a very willing and energetic worker". He did not find work there and be returned to Dubai; but Costains had no work then to offer him. So he went back again to Somaliland where the Government asked the British Embassy to intervene so as to get full compensation for him. Since then he has come to England to pursue his case here. He obtained legal aid and his solicitor wrote asking for compensation. Costains passed the matter to their insurers. They rejected the claim on the ground that all liability had been discharged by the receipt which Mr. Dohale signed on 19th August, 1968
On 1st July, 1971, a writ was issued. Pleadings were delivered in which Mr. Dohale alleged that Costains were negligent. Costains denied negligence and relied on the receipt as a discharge. They afterwards alleged that Mr. Dohale had been guilty of contributory negligence in putting his hand in a dangerous place. The plaintiff put in a reply in which he alleged that at the meeting when he signed the receipt he was told that the money was paid for his medical treatment and an artificial arm, and that it would bededucted from the compensation which he would later receive. He pleaded non est factum; He also said that, in any case, if there was any agreement by him to discharge Costains from liability, there was no consideration for it.
A preliminary issue was ordered to decide whether or no the receipt discharged Costains from all liability. Evidence was given by both sides as to the interviews leading up to the signing of the discharge and as to what was said there. The Judge found that the plaintiff's knowledge of English was "entirely satisfactory and entirely adequate and that his companion was an Intelligent person having no difficulty in speaking or understanding English." The Judge found that In the discussion it was made clear that the receipt was not confined to matters arising out of the Ordinance. He held that the receipt operated as a discharge of all claims and that, therefore, the plaintiff's claim must be dismissed. Now there is an appeal to this Court.
In determining the appeal, it is Important first to ascertain what were the rights of the plaintiff (a) under the Workmen's Compensation Ordinance: (b) at common law.
1. THE WORKMEN'S COMPENSATION ORDINANCE
The compensation payable under the Ordinance was two-fold:
(i) sick pay from the date of his injury. This came to 648 Q. D. R.:
(ii) the compensation for loss of an arm. This was 5616 Q. D. R.
By Article 11(c) it was provided that the worker should not be entitled to any benefit "If it is proved by the employer to the satisfaction of the Court that the worker delicerately contravened instructions issued to safeguard his health and person or displayed serious negligence in executing those instructions."
No one ever suggested to the plaintiff that he was in breach of that article: nor was any evidence' given to warrant any such suggestion. Mr. Jepson said quite generally that 11(c) "would have amounted to a defence, I am sure." But he gave no evidenceto support that assertion.
In the circumstances it seems to me that the plaintiff was. entitled as of right to payment under the Ordinance of the sums paid to him: and the defendants paid him the full sums due to him under the Ordinance, and no more.
II. THE CLAIM AT COMMON LAW
No evidence was given as to the common law of Dubai: but it is to be assumed it is the same as the common law of England. On the evidence it appears that the plaintiff would have a reasonable case for clairaing damages for negligence on the part of one of the team working the hammer; but It might fall to be reduced by reason of contributory negligence on his part. At any rate he had a reasonable claim for damages. This would not be excluded by his receiving compensation under the Workmen's Compensation Ordinance: because Article 4(3) said: "The provisions of this Ordinance shall, be without prejudice to any right which any other law, contract of service, agreement or decision gives to the workmen." I would construe that provision as preserving the plaintiff's right to common law damages; but, if he recovered them, he would, no doubt, have to give credit for any sums received under the Ordinance: see Unsworth v. Elder Dempster Lines Ltd. 1940 1 K.3. in this Court at pages 670 by Lord Justice MacKinnon and pages 670 by Lord Goddard, Chief Justice.
III THE RECEIPT
The question thus arises whether the receipt discharges Costains from all claims, not only under the Workmen's Compensation Ordinance, but also claims at common law for negligence. This raises two questions: (1) Does the receipt on its true construction discharge Costains of their liability at common law? (11) If it does, was there any consideration sufficient to support it?
(i) The construction of the receipt
The Judge placed much reliance on the discussions between the. parties. He held that In the discussions it was made clear to the plaintiff that the document was not confined to matters arising out of the Ordinance,
Now I do not think the Judge was entitled to take the discussions into account. The general rule is that when a contract has been reduced Into writing, evidence of previous negotiations is not admissible in order to construe it. That rule was emphatically re-affirmed in Prenn v. Simonds (1971) 1 W. L.R. 1381. Mr. French, Q. C, pointed out that the evidence here was admitted without objection by either side and he submitted that it was on this account legitimate for the Judge to be influenced by it. But the evidence was admitted for another purpose. It was this: There was an allegation in the pleadings that the plaintiff's signature had been obtained by misrepresenting the contents of the document (namely that the money was a payment on account to cover the medical expenses.) If that had been proved the plaintiff would not have been bound by the signature. The case would have been like Saunders v. Ford Motor Co. (1970) I Lloyds Reports 379, where there was a similar misrepresentation. There was further a plea relying on the doctrine of upon est factum". In Support of this plea, the plaintiff gave evidence that he could not read or write, either in Arabic or English, except his name and address and his father's. On this plea also evidence would be admissible of the discussions so as to see whether he understood the effect of what he was signing. But both those pleas failed. So the stark point arises: Ought the Judge (having admitted the evidence legitimately on those Issues) to have allowed himself to be influenced by...
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