Jameson and Another v Central Electricity Generating Board

JurisdictionEngland & Wales
CourtHouse of Lords
JudgeLORD BROWNE-WILKINSON,LORD LLOYD OF BERWICK,LORD HOFFMANN,LORD HOPE OF CRAIGHEAD,LORD CLYDE
Judgment Date16 December 1998
Judgment citation (vLex)[1998] UKHL J1216-2
Date16 December 1998

[1998] UKHL J1216-2

HOUSE OF LORDS

Lord Browne-Wilkinson

Lord Lloyd of Berwick

Lord Hoffmann

Lord Hope of Craighead

Lord Clyde

Jameson

And Another

(Respondents)
and
Central Electricity Generating Board
(Appellants)

And Others

LORD BROWNE-WILKINSON

My Lords,

1

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

My Lords,

2

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.

3

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.

4

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 [1971] 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.

5

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.

6

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.

7

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.

8

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.

9

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.

10

Thus in Townsend v. Stone Toms & Partners [1981] 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:

"where there are two separate causes of action, satisfaction of the one should not be a bar to proceedings on the other."

11

So the case against the architect continued.

12

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.

13

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.

14

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.

15

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.

16

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...

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