Taylor v O. Wray & Company Ltd
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE HARMAN,LORD JUSTICE EDMUND DAVIES,LORD JUSTICE WIDGERY |
| Judgment Date | 11 March 1969 |
| Neutral Citation | [1969] EWCA Civ J0311-6 |
| Judgment citation (vLex) | [1969] EWCA Civ J0311-5 |
| Court | Court of Appeal (Civil Division) |
| Date | 11 March 1969 |
[1969] EWCA Civ J0311-5
In The Supreme Court of Judicature
The Court of Appeal
(Civil Division)
(From: His Honour Judge Potter - Kingston County Court)
Lord Justice Harman
Lord Justice Edmund Davies and
Lord Justice Widgery
Mr. WILLIAM BARNETT (instructed by Messrs. Barlow, Lyde & Gilbert) appeared on behalf of the Appellants (Defendants).
Mr. JULIAN PRIEST (instructed by Messrs. R.I. Lewis & Co.) appeared on behalf of the Respondent (Plaintiff).
(without calling upon Counsel for the Respondent)
The Court is much obliged to Mr. Barnett for his sustained and vigorous argument. Though we do not feel able to accept it we have been much helped by it.
The appeal arises out of an unfortunate modern tendency connected with the compulsory insurance of motor cars. So far as he is insured, a plaintiff suffers no pecuniary damage. That is the insurers' business. But the insured claim is as much the plaintiff's claim as the uninsured, and the two ought not to be split - as they I am afraid often are in these days.
The plaintiff, driving his motor car somewhere in the area of the Kingston County Court, came into collision with a lorry driven by a servant of the defendants. The merits of the plaintiff's claim have been considered by the judge, who has decided that the defendants' servant was three-quarters responsible for the collision and the plaintiff one-quarter and has awarded the sum of £136 odd, being three-quarters of the cost of repairing the damage to the plaintiff's car. On these issues of fact there is no dispute; but the defendants take the point that in the circumstances to which I shall have to refer the plaintiff's action is barred and cannot succeed.
Now the plaintiff was insured under what is called a comprehensive policy for damages to his car, he being responsible for the first £10 of damage. He was not insured for personal injury nor consequential damage. In July, 1966, through his own solicitors, he sued the defendants for £100 and costs in the Kingston County Court. Special damage was alleged at £14. 3s. 10d., consisting of the £10 which the plaintiff had to bear as between him and his own insurance company and £4. 3s. 10d. for loss of use of his motor car whilst it was under repair. The defendants, in answer to this claim, on the 23rd June paid into court a sum of £30 and the scale costs. On the 28th June the solicitors arrived at a settlement of that action on the telephone. The plaintiff's solicitors confirmed this by a letter of that date in these terms:" Taylor v. O. Wray & Co. Ltd. We write to confirm the settlement arrived at "between us on the telephone this afternoon to the effect that the plaintiff accepts the sum of £30 paid into court in full settlement of his claims in this action, together with the sum of £24- as agreed costs, of which £5. 10s. Od. was paid into court with the damages of £30, leaving a balance of costs of £18. 10s.. Od., to be received from you. We have notified the Kingston County Court of the settlement and have taken the money out of court this afternoon. Please let us have your cheque for £18. 10s. Od. to complete the settlement".
That was the plaintiff's personal solicitors writing to the defendants' solicitors. These latter solicitors were in charge of both insured and uninsured claims.
It will be observed that part of the claim satisfied by the payment into court was the £10 in respect of damage to the plaintiff's car not covered by his policy, and it is on this ground that the defendants base their plea in the action. They agree that a plaintiff may in law split his claims arising out of a given transaction and sue for them niecemeal provided only that the cause of action in each case is different. This appears very clearly from the leading case of ( Brunsden v. Humphrey 14 Queen's v Bench Division), from which I read the headnote, at page 141: "Damage to goods and injury to the person, although they have been occasioned by one and the same wrongful act, are infringements of different rights, and give rise to distinct causes of action; and therefore the recovery in an action of compensation for the damage to the goods is no bar to an action subsequently commenced for the injury to the person".
That was a majority decision, and the majority view has been confirmed since. Lord Justice Bowen, one of the majority, as usual delivered a most illuminating judgment. I propose to read at page 147. "It is a well-settled rule of law that damages resulting from one and the same cause of action must be assessed and recovered once for all. The difficulty in each instance arises upon the application of this rule, how far is the causewhich is "being litigated afresh the same cause in substance with that which has been the subject of the previous suit, 'The principal consideration', says Chief Justice De Grey, in Kitchen v. Campbell, 'is whether it be precisely the same cause of action in both, appearing by proper averments and a plea, or by proper facts stated in a special verdict, or a special case'. 'And one great criterion', he adds, 'of this identity is that the same evidence will maintain both actions'. See per Lord Eldon in Martin v. Kennedy. 'The question', says Mr. Justice Grose, in Seddon v. Tutop, 'is not whether the sum demanded mighthavebeen recovered in the former action; the only enquiry is whether the same cause of action hasbeen litigated and considered in the former action'. Accordingly, 'though a declaration contain counts under which the plaintiff's whole claim might have been recovered, yet if no attempt was made to give evidence upon some of the claims, they might be recovered in another action: Thorpe v. Cooper. It is evident therefore that the application of the rule depends, not upon any technical consideration of the identity of forms of action, but upon matter of substance". It is true, says the Lord Justice, that it is the duty of the plaintiff to make ail his claims together under the maxim " Nemoproeademcausadebetbisvexari", and of course the court has power to prevent abuse of its process; but where, as in the leading case, there are two causes of action, namely damage to the person and damage to property, two actions may be brought. The test appears to be whether different evidence is needed to support the two causes of action. That is certainly true here except as regards the £10 the uninsured portion of the damage to the plaintiff's car.
The defendants therefore urge that as this £10 claim had already figured in the action which had been settled that is the end of it and it must be treated as having been paid by the defendants in full satisfaction of that cause of action.
This in my judgment is a mere technicality of no merit or substance. What are the facts? They are that long before thesettlement of this claim the plaintiff's insurance company had written to the defendants' insurers informing them that the cost of repairs would be in the region of £185 and that they would look for reimbursement of that sum, and that an offer to settle that claim on a 75/25 basis had already been made and negotiations were still on foot when the letter of the 28th June was written: they did not come to a head till the 6th July, when the plaintiff's insurers, having paid their own insured, demanded reimbursement of the defendants' insurers.
In these circumstances neither party to the agreement made on the 28th June could have been in any doubt that the settlement then negotiated intended to exclude what I may call the insured claim and to be confined to the uninsured claim. It was perfectly open to the parties' advisers to act in this way, and in my opinion when the letter of the 28th June mentions "in full settlement of his claims in this action" that refers and was intended by both parties to refer to the uninsured portion of the plaintiff's claim. If this be right, no further question of law arises. The learned judge was right, and the appeal should be dismissed.
I agree.
The County Court judge appears to have been under the impression that the defendants were relying on accord and satisfaction, whereas Mr. Barnett disclaims having done anything of the sort. Indeed, it would be surprising if he had, for he has frankly conceded that he could not possibly establish that the plaintiff was barred from suing by any "accord", or that his insurers, suing under their subrogation, would be similarly hindered. The letter of the 3rd February, 1966, sent by the latter to the defendants' insurers, read that they had been advised that the total cost of repairs to the Plaintiff's vehicle would be in the region of £185 and concluded: "We shall, of course, be looking to you for reimbursement of this sum, and doubtless you will note our interest". Thereafter, it appears that the defendants' insurers checked the damage for themselves and came to theirindependent conclusion that the cost of repairs would, indeed, be in the region of £180. They also formed the view that their client would probably be held two-thirds to blame for the accident. Accordingly, when, later, they paid £30 into court in respect of the claim for personal injuries and special damages totalling £14. 3s. 10d. which had been advanced by Plaint No. X.1068 in the proceedings launched on the plaintiff's behalf by his private solicitors, the defendants' insurers knew Perfectly well that that claim was never intended (as far as damage to chattels was concerned) to cover more than the first £10 damage which under his policy with the Trafalgar Insurance Company the plaintiff had himself to bear, together with the small sum of £4. 3s. 10d. for loss of use of his car while repairs were being effected. Nevertheless, it is said that by taking out of court that money the plaintiff (and, therefore,...
To continue reading
Request your trial
-
Buckland v Palmer
...given on the 23rd November, 1983. The basis of this decision was that the matter was concluded by a decision of this court in Taylor v. O. Wray & Co. Ltd. (1971) 1 Lloyd's Law Reports 497. Mr. Palmer, who, having legal aid, needed only persistence and clearly has that, has appealed to this......
-
Smith v Sabre Insurance Company Ltd
...[1994] QB 290; [1993] 3 WLR 708; [1993] 4 All ER 9; [1993] RTR 406; [1993] PIQR P319 Taylor v O Wray & Co LtdUNK [1971] 1 Lloyd's Rep 497 Ulster Bank Ltd v Fisher and Fisher (A Firm)DNI [1999] NI 68; [1999] PNLR 794 Textbooks etc. referred to: Beaumont, P, "Res Judicata and Estoppel in Civi......
-
Richard Burn v Nicola Louise Cotton
...on 6th September to the man dealing with the claim at the NEM from Dominion quoting the cases from Bingham's book on motor claims, Taylor v O. Wray in particular, and explaining that those cases meant that he could recover the insured loss from the NEM. 13 There the matter stood. There was ......
-
Yung Hong Wai v Ng Kam Shing & Others
...- consent judgment - insurers bring a second claim for the insured loss by way of subrogation - Taylor v. O. Wray & Co. Ltd. [1971] 1 Lloyd's Law Reports 497 considered and distinguished and in any event not followed. IN THE SUPREME COURT OF HONG KONG SMALL CLAIMS TRIBUNAL APPEAL NO.9/94 (C......