United Kingdom House of Lords Decisions

This case is reported ante, vol. xxviii. p. 130.

The North British Railway Company appealed.

At delivering judgment—

Earl of Selborne—I think all your Lordships are likely in this case to agree that the judgment appealed from cannot be maintained. One always feels a certain degree of compassion for persons who have suffered injuries of this description if it turns out that the compensation which they have been content to receive is apparently inadequate to the amount of the injury, but I cannot think, my Lords, that this is a proper ground on which to proceed if the parties have really and bona fide come to an accord and satisfaction with each other. I cannot help thinking that the consideration of the apparent inadequacy subsequently ascertained of the remuneration had very considerable weight with the Court of Session. In one of the judgments (Lord Young's I think) it is very prominently put forward, but with the greatest respect to that learned judge and to the others who may have concurred in that view, I cannot bring myself to adopt it. I think we must look at the circumstances as they stood at the time.

Now, the first question is a question of principle. Was there anything in the relation of these parties and in the nature of the question which they had to settle which precluded them or precluded the company from making a settlement at the time when it was done without assuring themselves that the pursuer had advice and assistance of a character which is not shown to have been had by him? There was no relation of influence or of confidence between the parties; they were certainly at arm's length. It was simply the case of a man having a cause of action for damages in respect of personal injury against those with whom he had entered into the contract which always subsists between persons travelling by railway and the railway company as carriers, and so long as there was nothing in the circumstances known to the company or in their conduct to give them an undue advantage of which they improperly availed themselves, I cannot think that parties so at arm's length are disabled by law from settling without litigation, and without going through any preliminaries for the purpose of ascertaining that each party is sufficiently informed as to the injuries. I cannot think that there is anything in the law to prevent them from making such a settlement; and it is fair to remember that while on the one hand the railway company offers compensation, and may offer what may turn out to be too little, on the other hand the party injured not infrequently over-estimates his injury, and asks a great deal more than he is fairly entitled to.

Well, then, we must look at the circumstances as they stood. There had been an accident of a peculiar kind, which in point of fact had inflicted no external injury. Whatever injury there might be latent in the case was either upon the nerves arising from the shock of the accident, or consisted in some internal effect upon the bodily system not at the time known to or discoverable by either party. In that respect it seems to me that the reports of Dr Watson are of importance. They show that he had more than once visited the patient and had discovered nothing more than that.

If he had told the company this was a case of a certain kind involving a permanent disability, it may be that the company having received that information, would have been acting in a manner not becoming them in keeping it back and taking advantage of that knowledge to obtain a settlement which under those circumstances might reasonably have been said to be too favourable to themselves. But there

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was nothing of that kind. It was a case as to which it was doubtful whether there was anything more than a temporary shock which would pass away — there was no external injury. As far as I can see, there was no improper supression of anything which Dr Watson had said. He had said that he had been unable to discover any external injury, although I do not think that that appears in the written report. That was told, and as far as I can see was quite truly told, to the sufferer. The sufferer was a man of business, for I must consider that a commercial traveller may be so described, and there is no suggestion that he was not a man of intelligence. He was living with his sister and her husband, the husband himself being in the employment of the railway company, and no motive is even suggested for his not giving such fair assistance as he could to his brother-in-law in the circumstances as they stood. He was informed by the railway company beforehand, in order that he might inform his brother-in-law (the sufferer) beforehand, of what it was that they proposed to offer. And more than that, at the very outset the railway company had invited from the pursuer any demand which he might think fit to make, and he had preferred apparently to wait for what they might be pleased to offer.

Well, the parties met, and with that previous notice, and when he was in a state of mind which, according to his brother-in-law's evidence, appears to me totally to exclude the notion of inability to understand what he was about, the pursuer deliberately took this money which was offered, £27, and signed the document which your Lordships have seen, which is short and partly printed, leaving the necessary particulars to be filled up, which he did himself in, as appears to me, a very good handwriting, not at all indicative of any species of bodily disability at the time. For my part, I should say that whether he did or did not carefully read the document, it was impossible for him to have filled it up and signed it as he did without seeing enough of it to understand it, and if he is to be trusted when he says that he did not read it, I can only say that I should conclude from that that he did not read it because he knew perfectly well what was in it without reading it.

Well, what is the document? It is a full discharge of all claims of this sort, and it is obvious that it is the object of such a payment, offered in such a manner, to get rid of the uncertainty and the expense and the risks of litigation on the one side and on the other. The pursuer signs this document, and then brings this action a year or more than a year afterwards.

Now, of the points which have been insisted upon, the most important, as it seems to me, is the suggestion that the acceptance of the payment and the signature of the document were at the time qualified by an express reservation, which either ought to be taken as accepted by the company's agent, or, at all events, as showing that the pursuer's mind did not go with the words of the document which he was signing. That being the most important matter now insisted upon, it seems to me, in the first place, to be very remarkable that there is no reference to this in the judgments of the Court below, and in the absence of that reference I hardly think that your Lordships ought to assume that the mind of the Court below did turn upon that point. Well, if not, what is there to maintain this judgment? But even taking that point without any prejudice from the absence of reference to it in the Court below, still it seems to me to be a point which, taken as it is, and having regard to such evidence as has been given upon it, makes it extremely important to see what the case was which was put upon the record, and of which case the parties were allowed to proceed to proof, because when the case came by the earlier interlocutor before the Inner House, their Lordships remitted that part of the case “of consent” to the Lord Ordinary, “with instructions to allow parties a proof of their averments made on record.”

Now, what are these avermenfs? The first was that the receipt did “not discharge, and was not understood by the pursuer to discharge, his right to make any further claim against the defenders.” Now, if there had been a reservation expressly and unequivocally made, so that it must have been understood on the other side, and one which was intended to make out that which seemed to be an absolute discharge in fact a qualified one, as if for payment on certain contingencies or merely on account, if it had taken place with that indication, it must have been from first to last so understood by the pursuer, and it is to me perfectly inconceivable that if it had been so he could have pleaded his defence in the way he does, because no man in such a pleading, with his mind addressed to the point, is in the habit of stating his case greatly below that which he means to rely upon. But as the pursuer states it, it seems to turn on only two propositions—one that the effect of the instrument upon the face of it is not a discharge (as to which I need say nothing, because it is clearly an untenable point), and secondly, that the pursuer did not understand that it was a discharge. But if it was the pursuer only who did not understand that, and if nothing took place to make the document otherwise than that which it was upon its face towards the party paying the money, the point comes to nothing, and so the Lord Ordinary expressly held when he dealt with the issues which were in the first instance proposed.

What were the issues which the pursuer proposed? The first of them was “whether he was injured or not.” I put that aside, as there is no question about it. Secondly, “whether when the pursuer signed the receipt he understood that he thereby discharged his claims against the defenders in full.” But the Lord Ordinary said that that would not do, that it would be no defence, and if

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nothing more had been pleaded but that, the defence would have failed in point of relevancy. It is after the pursuer knows that this defence which he has pleaded is good for nothing that these statements are made in the evidence. Well, since three witnesses speak of having heard something to the effect that in a possible case the pursuer would come back upon the railway company, I should be very sorry to suppose that nothing of the kind was said; but the question is, whether it was so said, either in point of intention on the part of the pursuer or in point of the meaning which is conveyed to the mind of the other party that it amounted to a reservation qualifying the written document. I cannot think that it was. I cannot think that he ever supposed that it was, because otherwise he would have pleaded in a different way from what he did, and that leads me to attribute a much greater weight upon that point to the statement made by Mr William Wood, who both in his statement and his examination-in-chief, and still more emphatically in his cross-examination, says very positively that that did not happen in the sense now relied upon, because though I agree with those who observe that three witnesses who remember a matter are generally more to be trusted than another who does not remember it, yet if it had taken place in the way necessary for the pursuer's argument, so as to convey unequivocally to Mr William Wood the idea that the written document did not express the true sense of the parties, then I think he would have been likely to remember it, and perhaps, as he himself thinks it very probable, he would not have paid the money. The conclusion which I draw from the evidence as a whole upon that point is that whatever was said it was not so said as to be on both sides intended and understood to be a qualification of the res gestœ of the written and signed document. That it was not so understood by Mr William Wood I am bound to believe from what he has himself said. That it was not so understood on the other side I cannot but conclude from the manner in which the pleadings stand upon the point.

Then upon the other points which are pleaded, the next two pleas are doubtless those alone which caused the Court to send the case to proof at all. The defenders' representative assured the pursuer “that he was suffering only from a slight nervous shock, and that he would be all right in a week or two.” Well, with reference to that there is nothing upon the evidence whatever. The words in a part of the evidence which were referred to by the learned counsel for the respondent were only these—he asked whether he had ever had a slight nervous shock before. That is not telling him that he was suffering only from a slight nervous shock, and still less that “he would be all right in a week or two.” If that had been said, it would no doubt have been very material indeed, because Dr Watson's opinion, such as it was, was known to the railway company, but there has been no attempt to prove it. Asking a man whether he has ever had a slight nervous shock is as remote from telling him that in point of fact he is suffering from a slight nervous shock and nothing more as anything can be in the sense of a representation tending to influence action.

Then the third statement in the pleadings is, “that shortly after the accident, and in consequence of it, the pursuer's mind became seriously affected.” When we get that upon the evidence it appears thus, that he was in a state of excitement and alarm on the day of the accident when Dr Watson first saw him, and that that alarm was greatly mitigated on the next day; and so far from the state of his mind at the time when the receipt was signed and the money was paid appearing to have been such as to affect his competency to enter into the transaction, his own brother-in-law distinctly proves the reverse. For my part I can see nothing in the evidence of the sister or any other part of the evidence to suggest to me the least doubt that he did really understand what he was doing. If, therefore, we are to look to the averments on the record, it appears to me impossible to hold that any of them which are material have been proved; and what the evidence adds to the averments I think, looked at in the light of those averments, does not amount to that kind of qualification of an act done which ought to be regarded as defining it of the character which it would otherwise have had.

Therefore I humbly move your Lordships to reverse these interlocutors, and to assoilzie the defenders from the conclusions of the action.