Palmer v Wick and Pulteneytown Steam Shipping Company
| Jurisdiction | England & Wales |
| Judgment Date | 05 June 1894 |
| Date | 05 June 1894 |
| Docket Number | No. 8. |
| Court | House of Lords |
Ld. Chancellor (Herschell), Lord Watson, Ld. Halsbury, Lord Shand.
Reparation—Contribution between wrongdoers—Assignation to one of two wrongdoers of joint and several decree against both.—
The widow of a man who had been killed by the breaking down of the tackle used in discharging a ship's cargo raised an action against the shipowner and the stevedore who was using the tackle at the time of the accident for damages, the fault alleged against the former being that his tackle was unfit for the work, and that alleged against the latter being that he had recklessly overloaded the tackle. The pursuer obtained decree against both the shipowner and the stevedore, jointly and severally for a sum of damages and expenses. Thereafter she gave the shipowner a charge for payment of the whole sum. He paid it and obtained from her an assignation to the sum of damages and expenses, and to the decree. He then raised an action against the stevedore for payment of half that sum. The stevedore pleaded in defence that the action was incompetent and irrelevant, in respect that there is no contribution between wrongdoers.
Held (aff. judgment of the Second Division) that the shipowner was entitled to recover half of the damages and expenses from the stevedore, because he was in right of the decree against the latter; and that the rule that there is no contribution between wrongdoers was inapplicable.
(In the Court of Session, 24th January 1893, 20 R. 275.)
The defender appealed.
The case was heard in November 1893.
At delivering judgment,—
Lord Chancellor.—The question raised in this case is a somewhat novel one. On the 17th of March 1892, in two conjoined actions, in which Mrs Fowlis and others were pursuers, and the present appellant and respondents were the defenders, the Court of Session decerned and ordained the defenders jointly and severally to make payment of sums amounting to £600. On the 24th of May 1892, a similar decree was made as regards the sum of £239, 4s. 1d., the pursuers' costs of the action. The pursuers, as they were entitled to do, sought payment of the entire sum of £839, 4s. 1d. from the present respondents, who were by the decrees made severally as well as jointly liable. The respondents paid the entire amount, but took from the pursuers an assignation of the judgment, and of the moneys thereby secured. The respondents thereupon commenced an action to recover one half of the amount so paid by them from the appellant. This action the appellant maintained was incompetent on the ground that there is no contribution between wrongdoers, that the judgment had been satisfied, and that the assignation of it to the respondents was ineffectual to confer on them any right to recover in this action.
The first of the two conjoined actions was instituted by Mrs Fowlis on behalf of herself and some of her children, and by others of her children, who were majors, against the respondents, to recover damages for the loss of her husband and the father of the children, whose death was alleged to have been due to the negligence of the defenders. His death was occasioned by the fall of a part of the tackle which was being used in the discharge of a vessel belonging to the defenders. They denied the negligence imputed to them, and alleged that if there had been any negligence it was that of the appellant, a stevedore employed to discharge the ship. The pursuers thereupon brought an action against him also, and the two actions were by order conjoined. The jury found negligence on the part of both the defenders. The decree of the 17th of March, to which allusion has already been made, was the decree applying this verdict. The decree of the 24th of May related to the costs.
My Lords, we have before us in the present action only the pleadings and verdict in the conjoined actions. It is at least consistent with these that the jury may have found their verdict of negligence against the shipping company, not on the ground of any personal default on the part of the company or its managers, but by reason of some negligence imputable to the master of the vessel. It is important to bear this in mind.
The learned counsel for the appellant did not contest the proposition that in general, where one of two co-obligants discharges the entire debt, he is entitled, unless there be some equity to the contrary, to call for an assignation of it, and to use such assignation for the purpose of enforcing payment of the share of his co-obligant. It is no answer to such an action to say that the whole of the debt has been discharged, and that there was, therefore, nothing to assign. There can be no doubt that the decrees of the 17th of March and 24th of May created joint and several debts. Why, then, should a co-debtor, who has paid the entire sum due, and received an assignation (it is unnecessary to inquire whether he could have demanded it), when he seeks to recover the share of his co-debtor, be subject more than other co-obligants to the answer that, the entire debt having been discharged, nothing remains due on the judgment, and that it can, therefore, no longer be proceeded on? The only answer, as it seems to me, must be that the joint debt resulted from a joint wrong, and that the law will not permit or assist any wrongdoer to recover contribution from another. It will be observed, however, that this is to allow the defender to set up his own wrong by way of answer, for the pursuer makes out a prima facie case by the production of the judgment and assignation. He has no need to rely on the joint wrong, or to go behind the judgment and assignation. On principle I can see no reason why, when a joint judgment debt has resulted from a joint wrong, each co-debtor should not pay his share; or why, if one be compelled by the creditor to pay the whole debt, the other should be enabled to go free by setting up his own wrong. Suppose a settlement were arrived at before the case was tried, and the wrongdoers gave a joint and several bond in discharge of the pursuer's claim, can it be doubted that, if one of them were forced to pay the whole, he could recover from the other his share? Why should the case be different where the issue is a decree that they shall jointly and severally pay? The learned Judges in the Inner-House, differing from the Lord Ordinary, have decided in favour of the pursuers in the present action. I am not disposed to dissent from their conclusion unless it can be clearly shewn to be contrary to the established law of Scotland.
There is certainly no express decision on the point. The appellant relied mainly on a dictum of Baron Hume. That learned Judge said,—‘It is all unum negotium in regard to those who are so far engaged in the wrong as to be liable for the consequences; and there is no principle here, as in the case of cautioners binding for the same debt, on which to imply any tacit agreement among them for mutual relief or division of the loss. Nor is the law at all inclined to distribute the damages out of tenderness to the delinquents.’ The observation that there was no right to mutual relief was not in any way necessary to the decision. It was a mere dictum. On the other hand, Lord Bankton and Lord Kames have both indicated views favouring the right to relief by a person bound ex delicto against his co-obligant.
It is not necessary in this appeal to decide whether there can be any right to contribution in the case of a delict proper when the liability has arisen from a conscious and therefore moral wrong, nor even whether in every case of quasi-delict a delinquent may obtain relief against his co-delinquent, though I see, as at present advised, no reason to differ from the opinion, which I gather my noble and learned friend Lord Watson holds, that such a right may exist. In circumstances such as those with which your Lordships have to deal, I cannot but think that equity and justice are in favour of the conclusion arrived at by the Inner-House, and there seems to be no authority compelling a contrary decision. It was urged that the person seeking relief might be the more culpable of the delinquents; but it is just as likely that he should be the less culpable. In selecting from which of his co-debtors he will obtain payment, the creditor would be guided usually by considerations wholly independent of the relative culpability of those from whom he may recover it.
Much reliance was placed by the learned counsel for the appellant upon the judgment in the English case of Merryweather v. Nixan.1 The reasons to be found in Lord Kenyon's judgment, so far as reported, are somewhat meagre,
and the statement of the facts of the case is not less so. It is now too late to question that decision in this country; but when I am asked to hold it to be part of the law of Scotland, I am bound to say that it does not appear to me to be founded on any principle of justice or equity, or even of public policy, which justifies its extension to the jurisprudence of other countries. There has certainly been a tendency to limit its application even in England. In the case of Adamson v. JarvisENR,1 Best, C,J., in delivering the judgment of the Court, referred to the case of Philips v. BiggsENR,2 which he said was never decided; ‘but the Court of Chancery seemed to consider the case of two Sheriffs of Middlesex, where one had paid the damages in an action for an escape, and sued the other for contribution, as like the case of two joint obligors.’ He then proceeded as follows:—‘From the inclination of the Court in this last case, and from the concluding part of Lord Kenyon's judgment in Merryweather v. Nixan,3 and from reason, justice, and sound policy, the rule that wrongdoers cannot have redress or contribution against each other is confined to cases where the person seeking redress must be presumed to have known that he...
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