Rukhmin Balgobin v South West Regional Health Authority
| Jurisdiction | UK Non-devolved |
| Judge | Lord Kerr |
| Judgment Date | 15 May 2012 |
| Neutral Citation | [2012] UKPC 11 |
| Date | 15 May 2012 |
| Docket Number | Appeal No 0013 of 2011 |
| Court | Privy Council |
[2012] UKPC 11
Lord Hope
Lady Hale
Lord Brown
Lord Kerr
Lord Wilson
Appeal No 0013 of 2011
Privy Council
Appellant
Thomas Grant
Jonathan Allcock
(Instructed by Forsters)
Respondent
Alan Newman QC
(Instructed by Simons Muirhead & Burton)
Heard on 12 January 2012
This is an appeal from a decision of the Court of Appeal of the Republic of Trinidad and Tobago. It concerns the effect of a default judgment entered at an early stage of proceedings against one of two defendants to a personal injury claim. The Court of Appeal concluded that the entry of the default judgment against one defendant operated as a bar to a subsequent finding of liability against the other defendant.
Ms Rukhmin Balgobin was an emergency medical technician and ambulance driver. On 19 June 2001 she was injured when she lifted (with a fellow employee) a heavy patient on a stretcher. She injured her neck and her arm was also affected. On 4 April 2005 she issued proceedings against the South West Regional Health Authority, the respondent in the present appeal. Her statement of claim averred that the respondent was her employer. Her claim was based on breach of contract and negligence. Among other allegations the statement of claim asserted that the respondent had failed to take adequate precautions for her safety, and failed to warn her of the dangers of lifting heavy persons. It was also claimed that she had not been trained in proper lifting techniques.
On 6 May 2005 the respondent filed a document referred to as a defence and counterclaim. In fact it did not contain a counterclaim but it pleaded that the appellant had been guilty of contributory negligence. The defence denied liability and claimed that the respondent was not the appellant's employer. It averred that her employer was TriStar Latin America Ltd.
On 19 May 2005 the appellant sought leave to join TriStar as a defendant and to make certain consequential amendments to her pleadings. This was granted on 27 May 2005 and on 2 June 2005 the appellant served an amended writ and statement of claim with TriStar as a second defendant.
TriStar did not enter an appearance to the writ. On 25 July 2005, the appellant applied for, and was granted, judgment in default of appearance, with damages to be assessed. An application was made on the same day for a date for the assessment of such damages to be fixed but this has not taken place nor has a date for an assessment of damages ever been scheduled.
Trial of the appellant's claim against the respondent took place in April 2008. The respondent chose not to call evidence. It relied on the submissions of its counsel to the effect that the default judgment entered against Tri Star amounted to an election by the appellant and that this precluded her from pursuing a claim against the respondent. This point had been raised for the first time in the respondent's skeleton argument for trial, which had been filed on 17 April 2008. The point had not been pleaded.
Jamadar J gave judgment on 20 May 2008. He held that the respondent was the appellant's employer. He found that the respondent had failed to instruct her properly and to train her in methods and techniques for moving patients on stretchers. This, the judge decided, amounted to breach of the contract of employment and of the respondent's duty of care to take all reasonable precautions for the appellant's safety. He found that she had contributed to the occurrence of her injuries, however, to the extent of 20%.
The judge characterised the respondent's principal argument as a submission that the evidence could not support a finding of joint employment and that the default judgment already entered was therefore conclusive on the issue of liability. This was the basis on which he considered the respondent's claim that the appellant was not entitled to continue with her claim against the South West Regional Health Authority.
The appellant's counsel had applied for leave to withdraw the judgment against TriStar. Jamadar J decided that this amounted to an application to discontinue. Since the judgment obtained was, in the judge's estimation, an interlocutory judgment, it was not a judgment "on the merits". He also considered that the circumstances in which the appellant had been prompted to apply to join TriStar were relevant. The respondent had positively asserted that TriStar had been the appellant's employer. It had submitted two written statements to that effect. In these circumstances the judge gave permission to the appellant to withdraw the default judgment and to discontinue her claim against TriStar. Judgment was entered for the appellant against the respondent for 80% of her damages which were to be assessed.
On appeal to the Court of Appeal, it was held by a majority (Kangaloo JA and Stollmeyer JA, Smith JA dissenting) that the default judgment obtained against TriStar was a bar to a finding of liability against the respondent. In his dissenting judgment, Smith JA held that the judgment entered against the second defendant did not amount to an election by the appellant to rely on the liability of TriStar to the exclusion of the respondent. The appellant was therefore entitled to pursue her claim against the health authority. On this basis, there was no need to set aside the default judgment or to discontinue the claim against TriStar. He expressed no view on whether that course of action had been valid.
A classic exposition of the principle of merger is to be found in the judgment of Parke B in King v Hoare (1844) 13 M & W 494, 504–505:
"If there be a breach of contract, or wrong done, or any other cause of action by one against another, and judgment be recovered in a court of record, the judgment is a bar to the original cause of action, because it is thereby reduced to a certainty, and the object of the suit attained, so far as it can be at that stage; and it would be useless and vexatious to subject the defendant to another suit for the purpose of obtaining the same result. Hence the legal maxim, 'transit in rem judicatam,'—the cause of action is changed into matter of record, which is of a higher nature, and the inferior remedy is merged in the higher. This appears to be equally true where there is but one cause of action, whether it be against a single person or many. The judgment of a court of record changes the nature of that cause of action, and prevents its being the subject of another suit, and the cause of action, being single, cannot afterwards be divided into two. Thus it has been held, that if two commit a joint tort, the judgment against one is, of itself, without execution, a sufficient bar to an action against the other…
We do not think that the case of a joint contract can, in this respect, be distinguished from a joint tort. There is but one cause of action in each case. The party injured may sue all the joint tortfeasors or contractors, or he may sue one, subject to the right of pleading in abatement in the one case, not in the other; but, for the purpose of this decision, they stand on the same footing. Whether the action is brought against one or two, it is for the same cause of action."
In the present case the respondent argued that the appellant had but one cause of action and that this lay against her employer. When she obtained judgment against the second defendant, she did so on the basis that TriStar was that employer and this operated as a bar to her continuing her action against the first defendant. Her cause of action had merged into the judgment and could not be revived for the purpose of the suit against the respondent.
The reasoning of the majority in the Court of Appeal was to the effect that when the appellant chose to seek and accept a default judgment against TriStar, she could no longer assert that the respondent was her employer because the foundation of the judgment against TriStar was that it was in fact the employer. The appellant could not be permitted to claim, in contradiction of that foundation of liability, that she had in fact been employed by another agency. In so holding the majority purported to apply the reasoning in Morel Brothers & Co Ltd v Earl of Westmorland [1904] AC 11 and Moore v Flanagan [1920] 1 KB 919.
In Morel the appellants had taken an action against the Earl and Countess of Westmorland for the price of goods supplied at the request of the Countess. In default of an appearance by her, they obtained judgment against the Countess. This was worthless so they proceeded against the Earl, having alleged that this was a case in which both he and his wife were jointly liable. Although this was the basis on which the case against the Earl was presented, the question of his possible liability as principal for his wife's having ordered the goods became part of the Court of Appeal's consideration. An arrangement had been made in July 1899 that the Earl should make available £2000 for the payment of household expenses. Collins MR in the Court of Appeal [1903] 1 KB 64 considered that the effect of this arrangement was that the Countess should not have authority to pledge the Earl's credit. The presumption of actual authority having thus been negatived, the question of ostensible authority was considered. It was concluded that all the evidence pointed to there having been no such authority. If anything, the evidence suggested that there was "a separate liability on the part of the wife" (p 74).
The essence of the finding of the Court of Appeal was that the appellants, having made the case against the Earl and the Countess that they were jointly liable, could not be heard to say that he...
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