Scottish Court of Session Decisions

George Campbell, Greenock, with consent and concurrence of his father as his curator and administrator-in-law, sued A. & D. Morrison, joiners and builders there, for £500 as damages for personal injury sustained by the pursuer.

The pursuer was an apprentice engineer in the employment of Messrs Kincaid & Company, Limited, engineers, Greenock, who were contractors for the s.s. “Alexandria,” although they themselves only supplied her engines and machinery. Messrs Seath & Company, shipbuilders, were sub-contractors for the hull, and they employed the defenders to dry-dock the vessel. The defenders in the course of their employment had fitted up a gangway from the dock side to the ship's side. On 12th September 1890, when the pursuer was crossing this gangway on his way to his work, one of the planks of which it was composed turned over and he fell into the dock, and was injured.

The pursuer averred—“In order that the work might be done by the pursuer and other workmen engaged at the vessel, she had to be docked, and the operations in connection with the docking of said vessel were undertaken and performed by the defenders, and a gangway, from the side of the dock to the ship for the use of all the workmen engaged thereon, was supplied and laid down by them, which it was their duty to do. The said gangway was the only means of access to the vessel. It was part of the duty of the defenders when docking the vessel to provide a gangway for the use of the pursuer and anyone requiring to go on board the vessel, but the gangway which they provided was dangerous and defective.”

The defenders averred, amendment having been allowed—“(Ans. 8) Explained further that on 8th January 1891 the pursuer discharged Messrs Seath & Company, the builders of the s.s. “Alexandria,” against whom he had made a claim in respect of such injuries, of all claim for damages in consequence of the injuries alleged to have been sustained by him at Garvel Park Dock, Greenock, on 12th September preceding, and that his own employers, Messrs Kincaid & Company being insured with the Employers Insurance Company of Great Britain, Limited, the pursuer recovered from said insurance company prior to this action being raised, in respect of the accident which is the ground of action, and of Messrs Kincaid & Company's liability therefor, the sum of £40 or thereby in name of damages.”

The defenders pleaded—“(1) The statements of the pursuer are not relevant and sufficient to sustain the conclusions of the summons. (9) In any view, the pursuer having elected to accept a sum in name of damages from the insurance company, with whom Messrs Kincaid & Company, his own employers, were insured, on their behalf and in respect of their liability for the accident, which is the ground of the present action, is barred from now recovering against the defenders.”

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Upon 4th June 1891 the Lord Ordinary ( Low) pronounced this interlocutor:—“Supersedes the adjustment of issues in hoc statu, and before answer in regard to the ninth plea-in-law for the defenders, allows to them a proof of the averments which were added to the answer to the eighth article of the condescendence, and to the pursuers a conjunct probation, &c.

“ Note.—The defenders now aver that the pursuer has accepted, in name of damages for the injuries which form the ground of the present action, a sum of £40 from his own employers, and that he is thereby barred from claiming damages from the defenders It is a settled rule that where an injury is sustained through the fault of two or more persons, and the party injured recovers damages from any one of them, the obligation is extinguished as to the rest, because, as Mr Erskine puts it (iii. 1,15), ‘An obligation founded solely upon damage cannot possibly continue after the damage ceaseth to exist.’ In the circumstances disclosed in the present case it might be a matter of some difficulty to say who is the party truly responsible to the pursuer, and it was stated by his counsel that he had already raised an action (which was thrown out) in the Sheriff Court against Kincaid & Company and Seath & Company. Now, if it turns out to be the case that the pursuer has transacted with one of the parties against whom he has made a claim, and has accepted a sum as reparation for the injuries which he received, then, in my opinion, his claim for damages will be exhausted, and the present action will fall to be dismissed. I therefore think that the proper course is to allow a proof of the defenders' averments to which I have referred.”

Upon 11th September 1891 his Lordship issued this interlocutor:—“Having considered the cause, Finds that the pursuer has not accepted any sum in name of damages, or as reparation for the injuries libelled: Therefore repels the ninth plea-in-law for the defenders: Appoints the cause to be enrolled for further procedure, and reserves all questions of expenses: Further, grants leave to reclaim.

“ Opinion.—The averment upon which I have allowed a proof is to the effect that the pursuer accepted, in respect of the injuries sustained by him, from an insurance company with whom his own employers, Messrs Kincaid & Company were insured, ‘the sum of £40 or thereby in name of damages.’ It appeared to me that if the pursuer had actually accepted a sum in satisfaction of his claim, and as reparation for the injuries which he had received, he could not be allowed to proceed with the present action. The facts brought out in evidence are as follow—The pursuer brought an action in the Sheriff Court in Greenock against his own employers Messrs Kincaid & Company, the builders of the ship, Messrs Seath & Company, and the present defenders, who had contracted with Messrs Seath & Company for docking the ship. The action was thrown out on a plea of no jurisdiction. The pursuer's agent, Mr M'Dowall, then appears to have determined to bring an action in the Court of Session against the present defenders alone, as being the parties against whom the pursuer was most likely to establish his claim. Mr M'Dowall, however, was unwilling absolutely to give up the claim which he had made against Seath & Company and Kincaid & Company without receiving some consideration for doing so, and it appears to have occurred to him that he might at all events obtain from these two firms a sum which would put him in funds to carry on the Court of Session action. He accordingly went to the agents of Seath & Company, and obtained from them a sum of £12, for which he granted a receipt, in which he acknowledges receipt of the money ‘as in full of expenses incurred by my client and myself, as his agent, in connection with his alleged claim for damages.’ … ‘And in consideration of the said payment, the said T. R. Seath & Company, but they only, are discharged of all said alleged claims.’ Mr M'Dowall then went to Mr Oattes, the agent of the Employers Insurance Company of Great Britain, with whom Messrs Kincaid & Company were insured, and who had defended the action in the Sheriff Court in Kincaid & Company's name. Mr M'Dowall told Mr Oattes that he was raising an action in the Court of Session against the present defenders, and was considering whether or not Kincaid & Company should also be called, and he intimated that if the insurance company would make a payment to the pursuer, which would help with the expenses of the Court of Session action, the pursuer would give up his claim against Kincaid & Company. Mr Oattes agreed to the proposal, and ultimately the amount to be paid by the insurance company was fixed at £17,10s. A discharge was prepared by Mr Oattes, and was ultimately signed by the pursuer and his father. The latter, however, only signed the discharge on being assured by Mr M'Dowall that it would not prejudice the pursuer's right to sue the present action. The discharge is No. 29 of process, and by it the pursuer, with consent of his father, and in consideration of £17, 10s. paid to him by Kincaid & Company, discharges that company ‘of and from all claims of reparation, and for payment of legal and other expenses now or hereafter competent to me,’ in respect of injuries occasioned by the accident. The pursuer and his father also bind and oblige themselves to free and relieve Kincaid & Company ‘from all claims of relief competent to any other person liable in reparation for said accident.’ It is clear that the money paid by Seath & Company and by the insurance company was neither paid nor received as compensation to the pursuer for the injuries which he had received. The money was paid by the companies for the purpose of getting rid of a claim which, however ill founded, might have resulted in expensive litigation with a man of no means, and was accepted by the pursuer as the consideration in respect of which he agreed not to press a claim for reparation against

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Messrs Seath & Company and Kincaid & Company. I think that it is impossible to hold that such a transaction precludes the pursuer making a claim for reparation against anyone. He has not received any sum in name of damages or as reparation for his injuries, and if the defenders are truly responsible for these injuries, I see no ground for holding that the pursuer is barred from suing them. The transactions with Seath & Company and Kincaid & Company cannot, I think, prejudice the defenders. Such transactions cannot make the defenders liable unless they would have been liable in any case, and a transaction to which they were not parties cannot prejudice any right of relief which they may have against Kincaid & Company or Seath & Company. I must therefore hold that the defenders have failed to establish the averments remitted to probation.”

The defenders reclaimed, and argued—The action was irrelevant. The pursuer was in the employment of Messrs Kincaid & Company; he must look to them for reparation if he had any claim at all. The defenders had no contract with them, and he could only sue under contract. Seath & Company had employed the defenders to dock the ship; after that it became the duty of Kincaid & Company to look after the safety of the workmen. Assuming, however, that the responsibility of making the gangway at first was upon the defenders, Seath & Company had accepted it as sufficient, and that excluded the pursuer from insisting in this action— M'Gill v. Bowman & Company, December,9. 1890, 18 R. 207; Ovington and Others v. M' Vicar, May 12, 1864, 2 Macph. 1067. Discharge—It appeared that the pursuer had already accepted sums of money from different persons as damages for the injury he sustained in this accident; he could not therefore sue the defenders. The summons in the Sheriff Court referred to in the proof was against all three parties, conjunctly and severally, so that one could have been found liable to pay the whole damage— Brinsmead v. Harrison, June 19, 1872, L.R. 7 C.P. 547.

The respondent argued— On Relevancy—Neither Kincaid & Company nor Seath & Company had constructed the gangway; the defenders were therefore liable for its defective condition. On Discharge—The pursuer was not barred. Kincaid & Company and Seath & Company to be rid of a doubtful claim made terms with the pursuer, and paid certain small sums on condition that he would not put them to the expense of a litigation, but that was not a discharge of the pursuer's claim against the person who was principally in fault. It was merely partial payment and not complete satisfaction in the meaning of the passage from Erskine— Western Bank v. Bairds, March 20, 1862, 24 D. 859.

At advising—