Matthews v Kuwait Bechtel Corporation
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE SELLERS,LORD JUSTICE WILLMER |
| Judgment Date | 08 April 1959 |
| Judgment citation (vLex) | [1959] EWCA Civ J0408-2 |
| Date | 08 April 1959 |
| Court | Court of Appeal |
[1959] EWCA Civ J0408-2
Lord Justice Sellers and
Lord Justice Willmer
In The Supreme Court of Judicature
Court of Appeal
MR. JOHN STOCKER (instructed by Messrs. L. Bingham & Co.) appeared for the Appellants, first Defendants below.
MR. G. HOME (instructed by Messrs. Denton, Hall & Burgin) appeared for the Respondent, Plaintiff below.
There was no appearance on behalf of the second Defendants.
: The Plaintiff in this action obtained leave to serve out of the jurisdiction the writ which he had taken out and it has in fact been served on the Defendants to the proceedings in Panama. The matter was in fact a little more involved, in that at the outset there was a second Defendant who was resident in this country and the appropriate procedure in those circumstances was adopted but what I have said was the effect of what emerged from what took place.
The Defendants who are now the Appellants applied, as they were entitled to under the Rules, for the service of the writ to be set aside. That application came before the Master who refused to set it aside. Mr. Justice MCNair heard the appeal and he upheld the Master's refusal. The Defendants have persisted and have appealed to this Court alleging that the decision not to set aside the service out of the jurisdiction in the circumstances of this case is wrong.
This Court has had the advantage of an interesting and sustained argument from learned counsel for the Appellants, the Defendants, who allege that the claim does not fall under Order 11, Rule 1(e) as it was held to have done by the Master who gave leave to serve out of the jurisdiction. It is said that it is a claim simply in respect of a tort committed, if at all, in Kuwait, and there is no jurisdiction to order service out of the jurisdiction. As originally framed, the writ does appear to have been a claim in tort but the writ was amended. So that no technical point can be taken about the state of the writ when the Order was made, learned Counsel for the Appellants said that he accepted the amendment and would take no point about it and, indeed, he was prepared, if it was so desired, to permit any further amendment of the writ without any objection if his submission before this Court at the present stage is not sustained that the service out of the jurisdiction was not justified.
It appears that on the 30th April, 1957, the Plaintiff entered into a written contract with the Defendants. There was entered into concurrently another contract, a preliminary contract, to which no further reference need be made. In substance the agreement was for the Plaintiff to go into the service of the Defendants as a foreman millwright "in Kuwait or such other location in the Near or Middle East (hereinafter referred to as 'the Zone of Operations') as the Company may desire." The agreement was to begin on the 30th April, 1957. The Plaintiff appears to have gone out at some time between then and the 28th May, less than a month after the date of the agreement, to Kuwait to carry on his duties under the contract, when, unfortunately, on the May, he met with an accident by falling into a trench when he was engaged in some work on the construction of a pump. He seems to have fallen into the trench because he stepped back into it and he stepped back into it because he was trying to avoid a load swinging from a crane which was coming towards him. Those facts are derived from an affidavit which the Plaintiff put in at one stage in these proceedings.
In the course of that affidavit the Plaintiff sets out the duty which he alleges the Defendants had infringed. It is said: "It was the duty of one or other or both of the Defendants" - the second Defendants have now been struck out and we are not concerned with them - "under and by virtue of one or other or both of the aforesaid agreements to take all reasonable care by themselves, their servants or agents, to provide and maintain safe premises, plant and equipment at any place or places at which I was to carry out my duties thereunder and to institute, operate and maintain a safe system of work and not to expose me to any unnecessary risk of injury at any such place or places."
Learned counsel for the Appellants has conceded that duties of that character did arise and the only point is whether they arose under this contract. The contention is that such duties arise in tort and not under contract. The importance of that in this particular case is apparent when one turns to the circumstances in which a writ can be served out of the jurisdiction. The Plaintiff at the time in 1958 when he sought to bring these proceedings had returned to England. The accident happened out in Kuwait. It appears that the Defendants are resident in Panama and that where the writ was in fact served. In those circumstances, the Plaintiff seeking to bring his action in these Courts and serve out of the jurisdiction, relies on the provisions of Order 11, Rule 1(e). That says; "Except in the case of a writ to which Rule 1 A of this Order applies, service out of the jurisdiction of a writ of summons or notice of a writ of summons may be allowed by the Court or a judge whenever… (e) the action is one brought against a defendant not domiciled or ordinarily resident in Scotland to enforce, rescind, dissolve, annul or otherwise affect a contract or to recover damages or for relief for or in respect of the breach of a contract (i) made within the jurisdiction or (ii) made by or through an agent trading or residing within the jurisdiction on behalf of a principal trading or residing out of the jurisdiction, or (iii) by its terms or by implication to be governed by English law."
The Rules under Order 11 are to be read disjunctively and each sub-section is complete in itself and independent of the others. ( Tassell v. Hallen, 1892, 1 Q.B.D. 321).
The question that has arisen in this case is whether the Plaintiff can properly present his case as a case for damages for breach of contract. The writ as amended is in these terms: "The Plaintiff's claim is for damages for personal injuries and loss sustained by the Plaintiff as a result of an accident which occurred on or about the 28th day of May, 1957, in the course of his employment with the Defendants in the Sheikdom of Kuwait, the said accident having been caused by breaches by the Defendants, their servants or agents of contracts of employment entered into between them and the Plaintiff at or about the 30th day of April, 1957."
The contract which is a long, printed document, signed by the parties, contains no express reference to the duties placed upon the employers in respect of their standard of care with regard to the premises in which they were engaging the Plaintiff to work or with regard to the provision of plant which he was to use or with regard to the system of work in which he had to co-operate. Clause 11 of the Agreement is a clause dealing with the working conditions, but it imposes obligations only on the employee and makes no reference to the obligations in respect there ofton the part of the employers. Clause 12 of the Agreement which was relied on, in my view is not helpful to the Appellants' argument when they seek to say that the agreement does not permit of any implied term with regard to the matter of taking reasonable care for the Plaintiff's safety in the course of the work. The clause provides, and admittedly it prevails in this respect, that the agreement "shall be construed and have effect in all respects in accordance with the law of England". It seems to me that the law of England is one which does permit terms in these matters to be implied into the contract. So far it is against the contention that the agreement can have no such implication. The other part of Clause 13 is as follows: "The agreement embodies the whole arrangements between the parties with reference to the employment agreement hereby constituted, and all previous correspondence and negotiations, whether oral or written, shall be excluded." I think none of those terms is anything like adequate to exclude or, indeed, was ever intended to exclude any term which would normally be implied into the contract if in fact there are such terms. That is the agreement.
The right of the Plaintiff to invoke the procedure under...
To continue reading
Request your trial
- Delco Australia Pty Ltd v Equipment Enterprises Incorporated Trading as Kukla Trenchers
-
Arbuthnott et al. v. Fagan and Feltrim Underwriting Agencies Ltd. et al., (1994) 173 N.R. 173 (HL)
...[para. 52]. Lister v. Romford Ice and Cold Storage Co., [1957] A.C. 555 (H.L.), refd to. [para. 52]. Matthews v. Kuwait Bechtel Corp., [1959] 2 Q.B. 57 (C.A.), refd to. [para. Nocton v. Ashburton (Lord), [1914] A.C. 932 (H.L.), consd. [para. 52]. Batty v. Metropolitan Property Realisations ......
-
New Brunswick Telephone Co. v. John Maryon International Ltd. and John Maryon and Partners Ltd.; Maryon v. New Brunswick Telephone Co., (1982) 43 N.B.R.(2d) 469 (CA)
...Storage Co. Ltd., [1957] 1 All E.R. 125, at 139; [1957] A.C. 555, at 558, by Lord Radcliffe, and Matthews v. Kuwait Bechtel Corpn, [1959] 2 All E.R. 345; [1959] 2 Q.B. 57. The position was stated by Tindal, C.J., delivering the judgment of the Court of Exchequer Chamber, in Boorman v. Brown......
-
Central Trust Co. v. Rafuse, [1986] 2 SCR 147
...3 Q.B. 511; Lister v. Romford Ice and Cold Storage Co., [1957] A.C. 555, affirming [1956] 2 Q.B. 180; Matthews v. Kuwait Bechtel Corp., [1959] 2 Q.B. 57; John Maryon International Ltd. v. New Brunswick Telephone Co. (1982), 141 D.L.R. (3d) 193; Tai Hing Cotton Mill Ltd. v. Liu Chong Hing Ba......
-
Employers' Liability at Common Law: Two Competing Paradigms
...of concurrent liability. Lords Keith and Tucker do not express a view on the issue either. In Matthews v Kuwait Bechtel Corporation4747[1959] 2 QB 57. the central issue before the Court of Appeal was whether an employer's health and safety duty was contractual or tortious. The case concerne......
-
WORKPLACE SEXUAL HARASSMENT IN SINGAPORE: THE LEGAL CHALLENGE
...Smith v Baker & Sons ; Wilsons and Clyde Coal Co Ltd v English ; Latimer v AEC Ltd, supra n 113. 145 Matthews v Kuwait Bechtel Corp [1959] 2 All ER 345 (CA); Thompson v Smiths Shiprepairers (North Shields) Ltd[1984] 1 All ER 881. 146 Courtaulds Northern Textiles Ltd v Andrew [1978] IRLR 84;......
-
Choice of Law in Tort—Blending in with the Landscape of the Conflict of Laws?
...1976), 231.17 The various heads of Order 11 need not necessarily be mutually exclusive: Matthews vKuwaitBechtel Corporation [1959] 2 QB 57, 62.18 As opposed just to requiring the plaintiff to show a serious arguable case on the merits.January 1998] Choice of Law in TortThe Modern Law Review......
-
Jurisdiction
...by statute or other rule having force of statute. See: Tasse v. Hallen (1892) 1 Q.B. 321; Matthews v. Kuwait Bechitel Corporation (1959) 2 Q.B. 57).” – Per Agbaje, J.S.C. in Adegoke Motors Ltd. v. Adesanya Suit No. S.C. 182/1988; (1989) 20 N.S.C.C. (Pt. II) 327 at 354; (1989) 3 N.W.L.R. (Pt......