Scottish Court of Session Decisions

Upon 14th July 1892 Patrick Dillon, quay labourer, was working in the hold of the “Collingham,” which was lying at the north side of the Queen's Dock, Glasgow, where her cargo of ore was being discharged. To prevent the ore falling back into the hold skids or planks were put across its mouth. One of these fell upon Dillon and dislocated his arm, having been dislodged by the foot of a ship-carpenter in the employment of Napier, Shanks, & Bell, shipbuilders, who was crossing over the “Collingham” in order to reach the quay from the “Bosphorus,” then in course of construction, and lying outside the “Collingham.”

On 10th August 1892 Dillon raised an action of reparation in the Sheriff Court at Glasgow against his own employer for £200, on the ground that the plank had been improperly placed, but this action he subsequently compromised for £20 paid by an insurance company, to whom his agent on 17th August wrote as follows—“Of course my client reserves his claim against the shipbuilders while discharging all claims against your insured. If the case is settled, kindly let me know what form of discharge you wish. I think a receipt upon the original petition, signed by my client himself, would keep you safe.” Upon 20th August he granted the following receipt—“Received from the defender Thomas Davidson the sum of £20, in full satisfaction and discharge of all my claims and demands, present or future, against him under the petition, for and in respect of the accident which happened to me whilst in his service on the 14th day of July 1892, including costs.”

Upon 15th September 1892 Dillon raised an action of reparation in the Sheriff Court at Glasgow against Napier, Shanks, & Bell for £250 as reparation for the same injuries. He averred—“(Cond. 7) In terms of the custom of the harbour of Glasgow, and the rules and regulations of the Clyde Trust, those in charge of one vessel outside another are bound to provide a gangway for their men over the deck of the inside vessel. Though warned by the stevedore's foreman, defenders, or those for whom they are responsible, failed to form any gangway over the ‘Collingham’ in which pursuer was working. Had defender provided a proper and suitable gangway, as required by the regulations and custom of Glasgow Harbour, none of their men would have been on the deck of the ‘Collingham,’ and pursuer would not have been injured in the manner described.”

He pleaded—“(1) Pursuer having been injured, as before described, through the defenders having committed a breach of the Clyde Trust Regulations and the custom of the harbour of Glasgow, decree should pass as craved, with costs.”

The defenders pleaded—“(I) The pursuer having accepted the sum of £20 in settlement of his claim to compensation for the injuries libelled by him, has no title to sue in the present action.”

Upon 4th November the Sheriff-Substitute ( Spens) repelled the first plea-in-law for the defenders, and allowed a proof.

“ Note.—The pursuer in this case raised an action in this Court claiming damages against Thomas Davidson, a stevedore, in whose employment he was, in connection with the same accident, for which damages are claimed here at common law against the defenders, who are shipbuilders. It appears that the sum of £20 was accepted from an Employers Liability Insurance Company in which Davidson was insured, as a discharge as against him, and that action was never called in Court. It is now pleaded that because of this settlement with Davidson pursuer is barred from raising this action against the defenders. It seems to me very clear that if in the receipt there had been an express reservation of the claim of pursuer against the defenders the plea would necessarily fall. In the letter to the manager of the insurance company from pursuer's agent, of date 17th August 1892, which was the letter on which the settlement proceeded, it is there said, ‘Of course my client reserves his claims against the shipbuilders while discharging all claims against your insured.’ It would, in my opinion, be too narrow a distinction to draw to hold that such a reservation in the receipt bars such a plea, but the letter on which the settlement proceeded expressly containing such a reservation does not bar. Should liability be held as established against the shipbuilder, pursuer would not be entitled to get more than what is estimated as the true value of his loss by the accident, and I imagine defenders would be entitled to plead that the £20 received must be deducted from the sum that would otherwise fall to be awarded.”

The defenders appealed to the Sheriff ( Berry), who on 16th March adhered.

Note.—I have come, on consideration, to be of opinion that the discharge granted in the action at the pursuer's instance against the stevedore, in whose employment he was at the time when he met with his accident, does not operate as a bar to the present action against another set of defenders. The sum paid in that other action was paid before it was called in Court; and the payment may have been made by the defender in order to get rid of an unfounded demand, resistance to which might have involved him in expenses, while on the other hand it might have been accepted by; the pursuer, although he regarded it as insufficient compensation for his injuries, because he felt uncertain of success. The discharge was given merely as a discharge of the pursuer's claim in that action; and it did not, as it seems to me, imply a discharge to other defenders who were being sued in separate proceedings. I do not think it was necessary for the pursuer to reserve in terms his claim in those separate proceedings against other defenders.

I think it unnecessary to consider whether, if an express reservation of the pursuer's claim against the present defenders had been necessary, it would have been competent to import into the discharge

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the terms of a letter of the pursuer's agent on which the settlement is said to have proceeded, but to which no reference is made in the discharge itself.”

The pursuer appealed to the First Division of the Court of Session for jury trial, when the defenders argued—1. The action was irrelevant. The only fault alleged was failure to provide a gangway. That was quite unnecessary except in cases of unloading, which alone were contemplated in rule 64 of the Harbour Regulations relied on by the pursuer. No custom apart from that rule had been set forth, nor did any such custom exist. 2. The pursuer was barred by his conduct in the former action, which was brought to recover reparation for precisely the same injuries, and was compromised after being served. By his receipt, which contained no reservation of his right to proceed against the present defenders, the pursuer must be held to have considered £20 full satisfaction for his injuries. The action proceeded on delict, but where one wrongdoer was discharged all were discharged. In the case of the Western Bank (infra) the defenders were sued in the same action: Here there were separate actions. The following cases in England were in point, viz.— Brinsmead v. Harrison, June 19, 1872, L.R., 7 C.P. 547; Wright v. London General Omnibus Company, April 25, 1877, L.R., 2 QBD 271. [ By the Court—Was the principle of those cases not res judicata?]

The pursuer admitted that rule 64 was the rule referred to, and that it was not in point, but argued (1) That custom had been sufficiently set forth and that the precaution of a gangway was reasonable and necessary; (2) that he was not barred by the previous action. The receipt expressly bore that it was only the claims against the defender in that action which were discharged, and the letter of 17th August made it clear that his right of action against the present defenders was reserved. The cases of Western Bank v. Bairds, March 20, 1862, 24 D. 859 (Lord Cowan, p. 912); Campbell v. A. & D. Morrison, December 10, 1891, 19 R. 282 (Lord Low's opinion) were in point. There had been no judgment here, but only a private compromise to avoid an action. There had been no satisfaction of a claim.

At advising—