Jameson and Another v Central Electricity Generating Board
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE AULD,SIR PATRICK RUSSELL,LORD JUSTICE NOURSE |
| Judgment Date | 13 February 1997 |
| Judgment citation (vLex) | [1997] EWCA Civ J0213-7 |
| Docket Number | QBENF 95/0640/C |
| Court | Court of Appeal (Civil Division) |
| Date | 13 February 1997 |
and
[1997] EWCA Civ J0213-7
Lord Justice Nourse
Lord Justice Auld
and
Sir Patrick Russell
QBENF 95/0640/C
QBENF 95/0688/C
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
SOUTHAMPTON DISTRICT REGISTRY
(Sir Haydn Tudor Evans)
Royal Courts of Justice
Strand, London WC2
MR. I. McLAREN QC (instructed by Messrs. Dibb Lupton Broomhead, Birmingham) appeared on behalf of the Appellant Defendant.
MR. W.C. WOODWARD QC (instructed by Messrs. Hextall, Erskine & Co., London E1) appeared on behalf of the Appellant Third Party.
MR. R. WALKER QC (instructed by Messrs. Payne Marsh Stillwell, Southampton) appeared on behalf of the Respondent Plaintiffs.
Thursday, 13th February 1997
There are two appeals before the Court against a judgment of Sir Haydn Tudor Evans, sitting as a Judge of the Queen's Bench Division, given on 31st March 1995. The first is by the Defendant, the Central Electricity Generating Board ("the CEGB"), against a number of rulings made on preliminary issues in favour of the Plaintiffs, the Executors of the Estate of David Allen Jameson, deceased, in their claim against the CEGB for damages for loss of dependency under the Fatal Accidents Act 1976. The second is by the Third Party, Babcock Energy Limited ("Babcock Energy"), against those rulings in the main action and also against the ruling that, in the event of the Plaintiffs succeeding in their claim against the CEGB, the CEGB was entitled to maintain proceedings against it for a contribution under the Civil Liability (Contribution) Act 1978.
The issue in the first appeal is whether a "full and final" settlement by a plaintiff with a tortfeasor of a personal injury action bars a dependency claim after his death against a concurrent tortfeasor. The issue in the second appeal is whether, if it does not, the latter tortfeasor can seek a contribution from the tortfeasor who settled with the deceased.
Mr Jameson died on 24th April 1988 at the age of 50 from malignant mesothelioma. Shortly before his death he agreed to accept £80,000 in "full and final settlement and satisfaction" from his former employer, Babcock Energy, of his claim in proceedings against it for negligently and in breach of statutory duty causing that disease by exposing him to asbestos. The sum of £80,000 was significantly less than the full liability value of his claim, reflecting both parties' appreciation of the uncertainty of the outcome of the litigation if it had proceeded.
Mr Jameson's claim against Babcock Energy was that the harmful exposure had occurred at various premises at which it had employed him, including those of the CEGB at which Babcock Energy was undertaking work. The fatal disease may have been caused solely by Babcock Energy's negligence or breach of statutory duty as employer, or solely by the negligence and breach of statutory duty of the CEGB as occupier, or by the respective negligence and breach of statutory duty of both of them. Assuming liability by both, it is accepted by the parties that they are to be regarded as several or concurrent, not joint, tortfeasors.
After Mr. Jameson's death his executors issued proceedings against the CEGB under the 1976 Act in respect of the same exposure to asbestos dust as for part of the claim in the settled action against Babcock Energy, alleging similar, but not identical, negligence and breach of statutory duty. The executors also claimed on behalf of the estate under the Law Reform (Miscellaneous Provisions) Act 1934, but later abandoned that claim because it was extinguished by the receipt of the settlement sum of £80,000.
The executors of Mr. Jameson's estate cannot claim under the 1976 Act against Babcock Energy as well as the CEGB because, by Section 1 of the Act, such a claim would only lie if, but for Mr. Jameson's death, he would have been entitled to maintain an action and recover damages against Babcock Energy. He would not have been so entitled since his settlement with it in his lifetime was an accord and satisfaction which discharged it from further liability to him.
The CEGB denied any culpable responsibility for Mr Jameson's fatal illness, but maintained that, in any event, it could not be liable because Mr Jameson's settlement with Babcock Energy had satisfied his claim and had thus discharged any claim that it might have had against the CEGB as a concurrent tortfeasor.
The CEGB joined Babcock Energy as a third party to the claim. Babcock Energy resisted that claim, similarly maintaining that its settlement with Mr Jameson barred the claim against the CEGB as a concurrent tortfeasor. It also maintained that, in any event, a claim under the 1976 Act in such circumstances is not within the provisions of the 1978 Act or that, if it is, the contract between it and the CEGB had expressly excluded liability for contribution.
The relevant facts in a little more detail were as follows. Mr Jameson was exposed to asbestos for relatively short periods in the 1950's while working for Babcock Energy at the CEGB's and other premises. His last contact with the substance was at the end of 1958, shortly before leaving Babcock Energy's employment. The disease of malignant mesothelioma was first diagnosed nearly thirty years later, in 1987, when he was 50. The nature of the disease is such that by the time it is manifest it has already severely curtailed expectation of life, and death normally follows within two years. In 1987, shortly after Mr. Jameson's discovery of his fatal illness, he issued proceedings against Babcock Energy, against whom his advisers considered he had a stronger claim than against the CEGB. He alleged breaches of the Factories Act 1937 and of the Building (Safety, Health and Welfare) Regulations 1948 and negligence at common law. Babcock Energy denied liability.
In early 1988 Mr. Jameson successfully applied to the Court for an order that the issue of liability should be tried first. He knew that he had not long to live and that any damages he might recover by way of judgment in his lifetime would be less than those that might be recovered for Mrs. Jameson, his sole dependant, under the 1976 Act after his death. He decided, therefore, that it would be to her advantage for him to obtain judgment on liability before he died, leaving her to reconstitute the action and introduce her dependency claim under that Act after his death.
However, on 30th March 1988, shortly before the date fixed for trial of the issue of liability, Babcock Energy paid £75,000 into court. Then, on 19th April 1988, five days before Mr. Jameson's death, his solicitor, on his behalf, agreed with Babcock Energy's advisers to settle the action for £80,000 with costs, a sum of damages which included some provision for future loss of income. The view of both parties' advisers was that the claim, including that for future loss of income, was worth about £130,000 if it were to succeed on liability, a valuation which the Judge said was reasonable. However, they both clearly took the view that there were weaknesses in the claim. These were mainly on the issue of liability, stemming from the shortness of time during which Mr. Jameson had been exposed to asbestos and uncertainty as to whether it had been sufficiently widely known in the 1950's that inhalation of small quantities of asbestos dust could cause injury to health. The Judge, therefore, found that the settlement sum was significantly less than the full liability value of the claim, reflecting as it did, both parties's assessment of the hazards of litigation.
On 29th April 1988, five days after Mr Jameson's death, the action was stayed, save for the purpose of enforcement, in the form of a Tomlin Order. The Order provided, so far as material:
"1. That the Defendant do pay to the Plaintiff the sum of £80,000 … in full and final settlement and satisfaction of all causes of action in respect of which the Plaintiff claims in the Statement of Claim.
…
4. That upon payment by the Defendants of the balance of damages and agreed costs the Defendants be discharged from any further liability in respect of the Plaintiff's claim in this action.
5. That the record be withdrawn."
There was no provision in the original settlement agreement or in the order barring a claim against the CEGB or any other party, and no basis that I can see for implying one. Whilst Mr. Jameson's advisers appear to have considered at the time the possibility of such a claim, the Judge, having heard evidence from his solicitor on the matter, rejected the suggestion made on behalf of the CEGB that such consideration was in any way improper so as to bar future proceedings against the CEGB.
In the present proceedings, by agreement between the parties the Judge considered a number of questions of law, leaving for later determination, if necessary, consideration of the issue of liability on the facts. The questions of law in the main action were:
1. the effect of Mr. Jameson's settlement with Babcock Energy on his executors' entitlement to make a dependency claim against the CEGB; and
2. whether, in any event, it would be an abuse of process to allow such a claim to proceed; and
3. what, if any, value there is in the dependency claim.
I turn to the first of the questions, which, more precisely, is whether release by judgment or settlement of one tortfeasor discharges a concurrent tortfeasor. It requires careful consideration of the...
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