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United Kingdom House of Lords Decisions
You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Jameson and Another v. Central Electricity Generating Board and Others  UKHL 51;  1 AC 455;  2 WLR 141;  1 All ER 193 (16th December, 1998)
Cite as:  2 WLR 141,  1 All ER 193,  UKHL 51,  1 AC 455
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I had the advantage of reading in draft the speech of my noble and learned friend, Lord Hope of Craighead. I agree with it and for the reasons which he gives, I would allow the appeal.
LORD LLOYD OF BERWICK
David Allen Jameson was employed by Babcock Energy Ltd. ("Babcock") between October 1953 and October 1958. In the course of his employment he worked at (among other places) two power stations owned and occupied by the defendants, the Central Electricity Generating Board ("C.E.G.B."). In February 1987 Mr. Jameson developed symptoms of malignant mesothelioma. On 24 April 1988 he died. Shortly before his death, he brought proceedings against his employers. The value of his claim as found by the judge, Sir Haydn Tudor Evans, and as now agreed between the parties, was £130,000. On 19 April the claim was settled for £80,000 plus costs. The settlement was later embodied in a Tomlin order dated 29 April 1988.
On 2 April 1989 the executors of Mr. Jameson's estate brought these proceedings against C.E.G.B. pursuant to the Fatal Accidents Act 1976, as amended, alleging negligence and breach of statutory duty. According to the particulars of negligence Mr. Jameson was exposed to substantial quantities of asbestos dust while working at Battersea Power Station between October 1953 and April 1954, and again at Castle Donnington Power Station between October 1957 and October 1958. The value of Mrs. Jameson's dependency, assessed on a conventional basis, has been agreed by the parties at £142,000. It is argued on behalf of C.E.G.B. that the claim under the Fatal Accidents Act ("the widow's claim") is now barred on the ground that Mr. Jameson's claim against Babcock was settled before his death, even though that claim was settled for less than two-thirds of Mr. Jameson's loss. If that is the law, then I would regard the result as most unjust.
However a judge with unrivalled experience in personal injuries litigation has held that it is not the law. In a careful judgment in which he dealt with all the authorities, including the decision of Sheriff Sir Allan Walker Q.C. in Carrigan v. Duncan  S.L.T. (Sh. Ct.) 33 (the authority on which the appellants chiefly rely) he has held that the widow's claim is not barred, because Mr. Jameson did not, on the agreed facts, recover the whole of his loss. The decision of the judge has been upheld by the Court of Appeal in an equally impressive judgment. I can find no error in either judgment, and would be content to adopt Auld L.J.'s judgment as my own. But it is right that I should spell out my reasons briefly in my own words.
There are two questions for decision, and it is best to keep them separate. The first is whether Mr. Jameson would himself have been able to maintain an action against C.E.G.B. if he had not died. If not, then clearly the widow's claim under the Fatal Accidents Act must fail.
The second question is whether if the widow is entitled to bring her claim under the Fatal Accidents Act it makes any difference that she is the beneficiary under her husband's estate. It is said that if she receives the dependency of £142,000 in full she will be recovering £80,000, or thereabouts, twice over; once as beneficiary under her husband's will, and once as part of the dependency. But as against that, section 4 of the Fatal Accidents Act specifically provides that benefits accruing to any person from the estate of the deceased are to be disregarded in assessing damages under the Act.
As to the first question, the starting point is to distinguish between joint torts and concurrent torts. It is agreed between the parties that we are here concerned with concurrent torts, and not joint torts; that is to say, the claim against Babcock and the claim against C.E.G.B. give rise to separate causes of action, each contributing to the same damage.
On the face of it, it would seem strange and unjust that a plaintiff who settles a claim against A in respect of one cause of action should be unable to pursue a claim in respect of a separate cause of action against B. Of course if the plaintiff recovers the whole of his loss from A, then he will have nothing left to recover against B. The payment received from A will have "satisfied" his loss, though I would for my part prefer not to use the term "satisfy" in this context, in order to avoid confusion with the quite different concept of accord and satisfaction. In the present case Mr. Jameson agreed to accept £80,000 plus costs in settlement of his claim against Babcock. If during his lifetime he had started a fresh action against Babcock he would have been met with the defence of accord and satisfaction, the satisfaction being the £80,000 which he agreed to accept in settlement of his claim against Babcock. But there would have been nothing whatever to stop him claiming against C.E.G.B. during his lifetime, unless, of course, £80,000 had been the full amount of his loss. But it was not. On the agreed facts it was less than two-thirds of his loss.
It is a matter of every day occurrence in personal injury litigation that a plaintiff will begin an action against two concurrent tort feasors. He may have a strong case against the first defendant, and a weak case against the second. In those circumstances he may be well advised to accept a payment into court made by the second defendant, and continue against the first.
Thus in Townsend v. Stone Toms & Partners  1 W.L.R. 1153 (a case in contract, but the same principle applies) the plaintiffs brought proceedings against a builder for defective work, and against the architect for negligence in supervising the work. The builder made a payment into court of £30,000 "in satisfaction of all the causes of action in respect of which the plaintiffs claim." It was argued that the claim against the architect should be stayed by virtue of R.S.C., Ord. 22, 3(4). The argument was rejected. Eveleigh L.J. said at p. 1161F:
So the case against the architect continued.
But when the case came on for trial, it was found as a fact that the £30,000 paid into court was more than sufficient to cover the whole of the loss suffered by the plaintiffs in respect of the overlapping claims. So the plaintiffs' claim against the architect in respect of the overlapping claims was dismissed, and the judge's decision to that effect was upheld by the Court of Appeal in Townsend v. Stone Toms & Partners (No. 2) (1984) 27 B.L.R. 26.
So the acceptance by a plaintiff of payment into court by one concurrent tort feasor does not operate as a bar to proceedings against other concurrent tort feasors, unless the plaintiff has recovered the whole of his loss. Exactly the same applies where judgment has been entered in respect of the amount paid into court (as happened in Townsend v. Stone Toms), or where a claim is settled without any payment into court; and exactly the same applies whether the claims against the other tort feasors are made in the same set of proceedings or in subsequent proceedings.
It follows that Mr. Jameson would in my opinion have been entitled to commence proceedings against C.E.G.B. during his lifetime for the whole of his loss, but he would have had to give credit for the £80,000 recovered from Babcock.
It is said that if Mr. Jameson had proceeded to judgment against Babcock and recovered £120,000, then he would not have been able to challenge that figure in other proceedings before another judge. The same ought to be true, so it is said, where Mr. Jameson has accepted £80,000 "in full and final settlement and satisfaction in all the causes of action in respect of which the plaintiff claims." The agreement stands in place of the judgment. But with great respect, the two cases are entirely different. The £80,000 is not an agreed figure of the plaintiff's loss, corresponding to the judge's award of £120,000. It is a figure which reflects the plaintiff's chances of success in the action. By the time the judge comes to make his award, the action has, ex hypothesi, succeeded. So there is no room for any discount. Like Auld L.J. I can see no basis in law or common sense why the settlement of a claim in respect of one cause of action at 50 per cent. of the plaintiff's loss, so as to reflect the chances of success against that defendant, should impose a ceiling on the damages recoverable in respect of a separate cause of action against a different defendant.
A part of the difficulty may lie in the use of the word "value" in this connection. When it is said that a claim has an agreed value of £80,000 it may mean one of two things; it may mean that the plaintiff's loss is agreed at £80,000. Or it may mean that his claim is worth £80,000 after taking account of the chances of success. In personal injury cases it frequently happens that quantum is agreed subject to liability. But since very few claims are settled at 100 per cent., I would take a great deal of persuading that in agreeing a figure of £80,000 the parties were agreeing a figure for Mr. Jameson's loss, which would then somehow enure to the benefit of concurrent tort feasors. Nor can I see any reason for implying a term in the settlement agreement that Mr. Jameson would not proceed against other tort feasors who might or might not bring contribution proceedings against Babcock. Babcock were professionally advised. If they had reason to fear contribution proceedings by a concurrant tortfeasor they could have protected themselves by an express term in the settlement agreement. But they did not. On the other hand if the appellants are right, it will mean that in every case plaintiffs will have to insist on an express term reserving the right to proceed against other concurrent tort feasors, even though there might be no other tort feasors in mind at the time. The requirment for such a term would be to reintroduce a trap of just the kind which Parliament and the courts have consistently tried to eradicate in the field of joint and several torts over many years: See the passage quoted in the court below from the judgment of Steyn L.J. in Watts v. Aldington The Times, 16 December 1993; Court of Appeal (Civil Division) Transcript No. 1578 of 1993, and the illuminating judgment, Neill L.J. in the same case.
It is said that policy favours finality. So it does. But I do not see how it can make the settlement agreement mean something which it does not say, and on one view could not say.
As for Carrigan v. Duncan the explanation must be that the pursuer had recovered the whole of his loss in the earlier proceedings. As Auld L.J. pointed out at p. 339, there was no evidence in that case that the amount of the payment accepted by the pursuer was less than his loss. If that is not the explanation, then the case cannot stand against the great weight of English authorities cited by Sir Haydn Tudor Evans and the Court of Appeal.
For the above reasons, I would not for my part doubt that Mr. Jameson would have been entitled to commence proceedings against C.E.G.B. during his lifetime for the whole of his loss, but he would have been bound to give credit for the £80,000 received from Babcock.
I turn to the second question. Again it seems to admit of a straightforward answer. Section 4 of the Fatal Accidents Act provides that benefits accruing to a person from the estate of the deceased are to be disregarded. Parliament must therefore have contemplated that in a case where the person who would benefit under the Fatal Accidents Act is also the beneficiary under the will, that person may be entitled to a double recovery. It is unnecessary to consider why Parliament should have so provided. The language of the section is precise and clear. On the face of it, therefore, Mrs. Jameson is entitled to recover £142,000 in respect of her dependency, and to keep the £80,000 from her late husband's estate. It may be that a decision to that effect would work hardly on Babcock; but not so hardly as a decision the other way would work on Mrs. Jameson. Section 4 of the Act does not permit a half-way house.
It hardly needs saying that the answer to the second question cannot throw any light on the answer to the first question.
Conscious, perhaps, of the weakness of their argument on this part of the case, the appellants allege that the current proceedings are an abuse of process. But the judge heard the witnesses over a period of ten days. He expressly acquitted Mr. Jameson, and his advisors, of having a "secret reservation" when they entered into the settlement agreement, or of planning any procedural device. In the face of those findings the allegation of abuse of process should have been abandoned.
For the above reasons, and the reasons given by Sir Haydn Tudor Evans and Auld L.J. in the Court of Appeal, with which I agree, I would dismiss the appeal.
I had the advantage of reading in draft the speech of my noble and learned friend, Lord Hope of Craighead. I agree with it and for the reasons which he gives, I would allow the appeal.
LORD HOPE OF CRAIGHEAD
The dispute which has arisen in this case concerns the effect of the settlement of an action of damages for personal injury where the injured party has sued only one of two or more tortfeasors who by their separate acts have caused the same harm. In such circumstances each tortfeasor is liable to the injured party jointly and severally with the other tortfeasors for the whole amount of his loss. The injured party, having brought his action against only one of them, has agreed to accept a sum of money from that tortfeasor in full and final settlement and satisfaction of all the causes of action in his claim against him. But it is said that there is a shortfall between the amount which he has agreed to accept under the settlement and the full value of the claim. Is he able then to maintain and recover damages from the other tortfeasors in order to make up this shortfall, or is he disabled from doing so by his settlement with the first tortfeasor? And, if the effect of the settlement is to discharge the liability of the other tortfeasors, does it have this effect as soon as the agreement is made, or is this effect suspended until the settlement has been performed by payment to the injured party of the full amount of the agreed sum?
These questions have not been the subject of decision in any of the relevant English authorities--no doubt because the practice is for concurrent tortfeasors to be sued in the same action where by their separate acts they have caused the same harm. They have arisen as preliminary issues in this case, where the second action was commenced after the injured party's death.
The plaintiffs, who are the deceased's executors, brought the action by writ against the defendant, the Central Electricity Generating Board ("the C.E.G.B.") on behalf of his widow under the Fatal Accidents Act 1976 for damages for her loss of dependency. The deceased had brought a separate action before he died against his employer Babcock Energy Limited ("Babcock") for damages for personal injury due to asbestos exposure at various places where he was required to work during his employment, including the defendant's premises. On 30 March 1988 Babcock paid the sum of £75,000 into court. On 19 April 1988 the deceased's solicitors agreed to accept Babcock's offer of £80,000 in settlement of the claim. On the following day they sent to Babcock's solicitors a draft Tomlin order which stated that it had been agreed that that sum was to be paid "in full and final settlement and satisfaction of all the causes of action in respect of which the plaintiff claims in the statement of claim." On 21 April 1988 Babcock's solicitors returned the draft order to the deceased's solicitors endorsed with their consent. The sum which was still due to be paid to the deceased under the settlement was £5,000, plus costs in the sum of £15,750. On 24 April 1988 the deceased died. On 29 April 1988 the action was stayed by way of the Tomlin order. On the same date Babcock's solicitors sent to the deceased's solicitors a cheque in settlement of their costs, and a further cheque for the remainder of the money payable to the deceased in full and final settlement and satisfaction of the claim. So, although the settlement had been agreed to before the deceased died, performance of it was not completed until after his death.
The action which is the subject of this appeal was commenced on 2 April 1989. Pursuant to an order which was made on 7 April 1993 Babcock were joined as a third party. On 31 March 1995 Sir Haydn Tudor Evans, sitting as a judge of the Queen's Bench Division, gave judgment on a number of preliminary issues. He held that the plaintiffs were entitled to maintain the present action on behalf of the first named plaintiff under the Fatal Accidents Act 1976. He also held that the C.E.G.B. was entitled to maintain proceedings against Babcock for contribution under the Civil Liability (Contribution) Act 1978. Appeals against that decision by both the C.E.G.B. and Babcock were dismissed by the Court of Appeal (Nourse and Auld L.JJ. and Sir Patrick Russell) on 13 February 1997. Babcock did not seek leave to appeal against that decision, so no question now arises as to the entitlement of the C.E.G.B. to maintain contribution proceedings against Babcock. The principal issue in this appeal is whether the plaintiffs are entitled to maintain these proceedings against the C.E.G.B. It has been assumed that during the periods when he worked at their premises the deceased was exposed to asbestos as a result of breach of duty both on the part of Babcock and the C.E.G.B., and the trial of the preliminary issues proceeded on the basis that the C.E.G.B. and Babcock were concurrent tortfeasors. We are concerned in this case not with an accord and satisfaction which extinguishes the liability in tort of joint tortfeasors, but with the question whether the liability of concurrent tortfeasors for the same harm is disharged by a settlement which has been entered into with one of them.
The questions which arise as to the effect of a settlement with one tortfeasor in an action with the other concurrent tortfeasors are relevant to this case because, in order to succeed in their claim against the defendant under the Fatal Accidents Act 1976, the plaintiffs must satisfy the requirements of section 1(1) of that Act, as substituted by section 3(1) of the Administration of Justice Act 1982. The substituted section 1(1) provides:
The plaintiffs must show (a) that the death was caused by a wrongful act, neglect or default which would, if death had not ensued, have entitled the deceased to maintain an action and recover damages in respect thereof and (b) that the defendant is a person who would have been liable, if death had not ensued, to the deceased's action of damages. It is the second of these two points which is in issue in this case.
In the ordinary case, where the deceased has died without having first brought an action of damages, the application of this provision will produce a fair result and ought not to give rise to any difficulty. But the question whether the plaintiffs can satisfy its requirements has an additional significance in this case. This is because section 4 of the Act of 1976, as substituted by section 3(1) of the Administration of Justice Act 1982, provides that in assessing damages in respect of a person's death in an action under that Act the benefits which have accrued to any person from his estate or otherwise as a result of his death shall be disregarded. The first named plaintiff has inherited the whole of the sum of £80,000 which was received from Babcock under the settlement of the deceased's claim together with the remainder of the deceased's estate. As this is a benefit which accrued to her as a result of the death it must be disregarded. So the C.E.G.B. cannot take into credit, by way of set off against any liability to the plaintiffs in this action, the amount which was paid to the deceased in order to settle his claim against Babcock.
The situation which has arisen here may be summarised in this way. If the deceased would have been entitled to maintain an action and to recover damages from the C.E.G.B. notwithstanding his settlement with Babcock, the plaintiffs will be entitled not only to recover damages from the C.E.G.B. but to do so to the extent of the full amount of their claim without any set off for the damages which the deceased has already received under the settlement. The C.E.G.B. for its part will be entitled to maintain proceedings under section 1(1) of the Civil Liability (Contribution) Act 1978 against Babcock for a contribution towards the sum paid it to the plaintiffs in this action, notwithstanding the fact that Babcock has already entered into a full and final settlement of the deceased's claim against it. Thus Babcock, having agreed to a full and final settlement of the deceased's claim of damages and having implemented that settlement, will be exposed to a claim for a contribution towards a further payment in respect of the same claim which will be calculated as if that settlement had not been entered into. And the plaintiffs will be able to achieve full recovery for the first named plaintiff in respect of her claim of damages for loss of dependency, despite the fact that her loss has already been reduced by the amount which she has inherited from the deceased's estate which was paid in full and final settlement of his claim of damages for personal injury.
The trial judge said that he had reached this result with regret because it might work an injustice on Babcock. I agree. It seems unjust that Babcock should be exposed to the risk of having to pay damages twice for the same harm and that the plaintiffs should be able to obtain for the first named plaintiff what, in the circumstances, would amount to double recovery in respect of the same loss. It seems unlikely that, when the substituted section 4 of the Fatal Accidents Act 1976 was enacted, Parliament contemplated that a person could become entitled to a double recovery in these circumstances.
Did the settlement with one tortfeasor discharge the other tortfeasor?
The basic rule is that a plaintiff cannot recover more by way of damages than the amount of his loss. The object of an award of damages is to place the injured party as nearly as possible in the same financial position as he or she would have been in but for the accident. The liability which is in issue in this case is that of concurrent tortfeasors, because the acts of negligence and breach of statutory duty which are alleged against Babcock and the defendant respectively are not the same. So the plaintiff has a separate cause of action against each of them for the same loss. But the existence of damage is an essential part of the cause of action in any claim for damages. It would seem to follow, as a matter of principle, that once the plaintiff's claim has been satisfied by any one of several tortfeasors, his cause of action for damages is extinguished against all of them. As Lord Atkin said in Clark v. Urquhart  A.C. 28, 66, "damage is an essential part of the cause of action and if already satisfied by one of the alleged tortfeasors the cause of action is destroyed." In that case the plaintiff had received in satisfaction of his claim against one defendant the full amount of damages which he could have received on any of the causes of action against the rest. It was held that his acceptance of the money paid into court was a satisfaction of all the claims in the action and that his damage, in a question with the other defendants, had been satisfied. In Tang Man Sit v. Capacious Investments Ltd.  AC 514, 522 Lord Nicholls of Birkenhead discussed the limitations on a plaintiff's freedom to sue successively two or more persons who are liable to him concurrently. He explained the point in this way at p. 522F:
So the first question which arises on the facts of this case is whether satisfaction for this purpose is achieved where the plaintiff agrees to accept a sum from one of the alleged concurrent tortfeasors which is expressed to be in full and final settlement of his claim against that tortfeasor, if that sum is less than the amount which a judge would have held to be the amount of the damages which were due to him if the case had gone to trial and the defendant had been found liable.
In the Court of Appeal  Q.B. 323, 341H-342A Auld L.J., in a careful and impressive judgment, said that he could "see no basis in law or common sense why an agreement expressed to be 'in full and final settlement and satisfaction' between a claimant and one tortfeasor should be regarded as full satisfaction in respect of any claims that he may have against a concurrent tortfeasor who was not a party to [the settlement]." This was because the causes of action against each of the concurrent tortfeasors are separate, not single and indivisible as is the case with joint tortfeasors. He said that satisfaction, as between concurrent tortfeasors, must depend not upon an agreement with one of them but on whether or not the claim against the second tortfeasor has in fact been satisfied. So the judge in the second action was not bound to equate full satisfaction with a figure acceptable to both parties representing their assessment of the risks of litigation.
I follow that reasoning as far as it goes but I do not think, with great respect, that it goes quite far enough. The causes of action are indeed separate. And it is clear that an agreement reached between the plaintiff and one concurrent tortfeasor cannot extinguish the plaintiff's claim against the other concurrent tortfeasor if his claim for damages has still not been satisfied. The critical question, as Auld L.J. was right to point out at p. 342B, is whether the claim has in fact been satisfied. I think that the answer to it will be found by examining the terms of the agreement and comparing it with what has been claimed. The significance of the agreement is to be found in the effect which the parties intended to give to it. The fact that it has been entered into by way of a compromise in order to conclude a settlement forms part of the background. But the extent of the element of compromise will vary from case to case. The scope for litigation may have been reduced by agreement, for example on the question of liability. There may be little room for dispute as to the amount which a judge would award as damages. So one cannot assume that the figure which the parties are willing to accept is simply their assessment of the risks of litigation. The essential point is that the meaning which is to be given to the agreement will determine its effect.
I take as my starting point the fact that a claim of damages in tort is a claim for unliquidated damages. It remains unliquidated until the amount has been fixed either by the judgment of the court or by an agreement as to the amount which must be paid to satisfy the claim. It cannot be doubted that, once the amount of the damages has been fixed by a judgment against any one of several concurrent tortfeasors, full satisfaction will have been achieved when the judgment is satisfied. The law used to be that the judgment against one joint tortfeasor was itself, without satisfaction, a sufficient bar to an action against another joint tortfeasor for the same cause: Brown v. Wootton (1604) Cro. Jac. 73; Brinsmead v. Harrison (1872) L.R. 7 C.P. 547: Bryanston Finance Limited v. de Vries  Q.B. 703, 721E-H and 730B-C per Lord Denning M.R. and Lord Diplock. In the case of concurrent tortfeasors, a judgment recovered against one of them did not put an end to the cause of action against any of the other tortfeasors until it had been satisfied: Bryanston Finance Limited v. de Vries, p. 730E-F, per Lord Diplock. Section 6(1)(a) of the Law Reform (Married Women and Tortfeasors) Act 1935, which was replaced and extended by section 6 of the Civil Liability (Contribution) Act 1978, altered the common law on these matters. As the law now stands, a plaintiff is barred from going on with a separate action against another tortfeasor if the judgment which he has obtained in the first action has been satisfied.
What then is the effect if the amount of the claim is fixed by agreement? Is the figure which the plaintiff has agreed to accept in full and final satisfaction of his claim from one concurrent tortfeasor open to review by the judge in a second action against the other concurrent tortfeasor on the ground that, despite the terms of his agreement, he has not in fact received the full value of his claim? Or is the fact that that figure was agreed to as the amount to be paid in full and final settlement of the first action to be taken as having fixed the amount of the claim in just the same way as if it had been fixed by a judgment, so that the claim must be held to have been extinguished as against all other concurrent tortfeasors?
As I have said, a claim of damages is a claim for a sum of money, the amount of which must necessarily remain unliquidated until something has been done to fix the amount. Where the claim is adjudicated upon by the court, the amount of the damages is fixed by the judgment which the court makes as to the sum required to make good to the plaintiff the full value of his loss. But it is well known that many claims are settled without the amount due as damages having been adjudicated by the court. They are settled by agreement between the parties. Were it not for the fact that most claims of damages are settled in this way, the parties would be exposed to greater expense and uncertainty and the burden of work on the courts would be intolerable. There is a strong element of public interest in facilitating the disposal of cases in this way.
In the typical case the plaintiff agrees to accept the sum which the defendant is willing to pay in full and final settlement of his claim. Such a settlement normally involves an element of compromise on both sides. Each side will have made concessions of one kind or another to reflect its assessment of the prospects of success if the case were to go to trial. The plaintiff will normally have made a discount from the amount which he regards as full compensation for his loss. He may have withdrawn some elements of his claim, reduced the amounts sought in settlement of others or accepted an overall reduction in the amount claimed. But, whatever the nature and extent of the compromise, one thing is common to all these cases. This is that the agreement brings to an end the plaintiff's cause of action against the defendant for the payment of damages. The agreed sum is a liquidated amount which replaces the claim for an illiquid sum. The effect of the compromise is to fix the amount of his claim in just the same way as if the case had gone to trial and he had obtained judgment. Once the agreed sum has been paid, his claim against the defendant will have been satisfied. Satisfaction discharges the tort and is a bar to any further action in respect of it: United Australia Ltd. v. Barclays Bank Ltd.  A.C. 1, 21 per Viscount Simon L.C.; Kohnke v. Karger  2 K.B. 670, 675 per Lynskey J. I think that it follows that, if the claim was for the whole amount of the loss for which the defendant as one of the concurrent tortfeasors is liable to him in damages, satisfaction of the claim against him will have the effect of extinguishing the claim against the other concurrent tortfeasors.
There may be cases where the terms of the settlement, or the extent of the claim made against the tortfeasor with whom the plaintiff has entered into the settlement, will show that the parties have not treated the settlement as satisfaction for the full amount of the claim of damages. In the same way a judge, in awarding damages to the plaintiff in his action against one concurrent tortfeasor, may make it clear that he has restricted his award to a part only of the full value of the claim. That was the point which the sheriff, Sir Allan G. Walker Q.C., had to examine in Carrigan v. Duncan 1971 S.L.T. (Sh.Ct.) 33. In that case the pursuer who had accepted a sum from one wrongdoer in full satisfaction of his claim for loss and injury resulting from a road accident raised a fresh action against another alleged wrongdoer in an attempt to recover further damages. Auld L.J. said at p. 339B that this case did not support the submission that the answer to the question whether the claimant had received full satisfaction is to be found in the words of the settlement. I think that, on closer examination, it provides direct support for this submission on grounds which do not appear to be in conflict with any relevant English authority. It has been referred to and accepted as good authority in Australia: Ruffino v. Grace Brothers Pty. Ltd.  1 N.S.W.L.R. 732; Boyle v. State Rail Authority (N.S.W.) (1997) 14 N.S.W.C.C.R. 374.
In holding that the second action was incompetent the sheriff distinguished two previous cases where a second action to recover further damages had been held to be competent. The first was Dillon v. Napier, Shanks & Bell (1893) 30 S.L.R. 685, where the court examined the terms of the receipt and the correspondence regarding the settlement which showed that the pursuer's claim against the second wrongdoer was expressly reserved and the payment made was not a payment in full satisfaction of all possible claims for the injury. The second was Crawford v. Springfield Steel Co. Ltd., 18 July 1958 unreported, where Lord Cameron held that the obtaining of a decree against one employer did not debar a later claim against another employer because the judge in the first action had made it clear in his judgment that he had granted decree for only 10 per cent. of the pursuer's total loss due to the disease which he had contracted on the footing that the defenders in that action were only 10 per cent. to blame for the pursuer's incapacity. In Carrigan v. Duncan on the other hand the pursuer had brought his action against the defender in the first action on the basis that that defender was entirely to blame for the accident. It was said on his behalf that he did not intend the settlement of the earlier action to be in full satisfaction of his claim for loss and injury arising from the accident. But the pleadings and the terms of the settlement, looked at objectively, showed that the sum which he obtained under it had been accepted in full satisfaction of his claim.
In these circumstances the sheriff applied the decision of the Court of Session in Balfour v. Baird & Sons 1959 S.C. 64, where the judgment which the pursuer had obtained against one employer in the first action made it clear that the award of damages was for the whole of the damage which he had suffered as the result of his pneumoconiosis and the second action which had been raised against another employer was dismissed as incompetent. Relying on the principle which was explained in that case that the claim is extinguished against all the wrongdoers once the damages have been satisfied in an action against any one of them, the sheriff held that the claim had been satisfied by the settlement of the first action and that in this case also the second action was incompetent. He did not, as Auld L.J. noted at p. 339D, hear any evidence that the sum which had been accepted in settlement was less than the full amount of his loss. But it is clear from the sheriff's judgment that he would have held that evidence to that effect was excluded by the terms of the settlement.
I think that these cases demonstrate the limits of the inquiry which the judge may undertake in the event of a subsequent action being raised against another alleged concurrent tortfeasor. He may examine the statement of claim in the first action and the terms of the settlement in order to identify the subject matter of the claim and the extent to which the causes of action which were comprised in it have been included within the settlement. The purpose of doing so will be to see that all the plaintiff's claims were included in the settlement and that nothing was excluded from it which could properly form the basis for a further claim for damages against the other tortfeasors. The intention of the parties is to be found in the words of the settlement. The question is one as to the objective meaning of the words used by them in the context of what has been claimed.
What the judge may not do is allow the plaintiff to open up the question whether the amount which he has agreed to accept from the first concurrent tortfeasor under the settlement represents full value for what has been claimed. That kind of inquiry, if it were to be permitted, could lead to endless litigation as one concurrent tortfeasor after another was sued on the basis that the sums received by the plaintiff in his settlements with those previously sued were open to review by a judge in order to see whether or not the plaintiff had yet received full satisfaction for his loss. Different judges might arrive at different assessments of the amount of the damages. The court would then have to decide which of them was to be preferred as the basis for the apportionment between the various tortfeasors. I do not think that this can be regarded as acceptable. The principle of finality requires that there must be an end to litigation.
The question therefore is, as Mr. McLaren Q.C. for the C.E.G.B. put it, not whether the plaintiff has received the full value of his claim but whether the sum which he has received in settlement of it was intended to be in full satisfaction of the tort. In this case the words used cannot be construed as meaning that the sum which the deceased agreed to accept was in partial satisfaction only of his claim of damages. It was expressly accepted in full and final settlement and satisfaction of all his causes of action in the statement of claim. I would hold that the terms of his settlement with Babcock extinguished his claim of damages against the other tortfeasors.
Was the effect of the settlement suspended until payment?
This is the second question which arises on the facts of this case, because the sum due under the settlement which the deceased entered into before he died on 21 April 1988 was not paid until 29 April 1988. When he died the debt which was due under the settlement had not been satisfied. Section 1 of the Act of 1976 requires that the question whether the defendant would have been liable to the deceased in damages if death had not ensued must be addressed as at the date of the deceased's death. As Lord Dunedin said in British Electric Railway Co. Ltd. v. Gentile  AC 1034, 1041, the punctum temporis at which the test is to be taken is at the moment of death, with the idea fictionally that death has not taken place. But the problem in this case is not due to any failure on Babcock's part to perform its obligations under the settlement. It is simply one of timing.
The argument for the C.E.G.B. was that the date of the settlement agreement should be held to be the effective date for the discharge of the tort. I do not think that it would be right to regard what the deceased accepted in settlement of his claim for damages as no more than a promise by Babcock that it would perform its obligations under the settlement. What he agreed to do in satisfaction of his claim was to accept payment of the sum which Babcock had agreed to pay to him. So it was open to him to say that until that sum had been paid to him his claim of damages had not been satisfied. As Lord Diplock explained in Bryanston Finance Limited v. de Vries  Q.B. 703, 730E-G, that is the rule which applied at common law where the plaintiff had recovered a judgment against one of two or more concurrent tortfeasors. The judgment did not put an end to the cause of action until it had been satisfied. So long as it remained unsatisfied it was not a bar at common law to a subsequent action against any other of the tortfeasors.
Examples of the application of a similar rule can be found in the Scottish authorities. In Steven v. Broady Norman & Co. 1928 S.C. 351 it was held that the fact that a decree had been obtained against one of a number of joint and several obligants did not preclude a fresh action being brought against the others, if satisfaction had not been got under the decree. In Arrow Chemicals Ltd. v. Guild 1978 S.L.T. 206 Lord McDonald applied the same rule in a case where the first action had been settled by the pursuer's acceptance of a sum which had been tendered to him in full of the conclusions of the summons. He held that the pursuer would be precluded from proceeding against the defender in the second action if he had already received full reparation of his loss from the first, but that he would be able to proceed with the second action if he had been able to recover nothing under the decree which he had obtained in the first action or had recovered less than his full loss under it. We were not referred to any English case in which this question had arisen in a case where the plaintiff had entered into a settlement in his action against the first concurrent tortfeasor. But it seems to me that it would have to be answered in the same way. To do otherwise would clearly produce hardship and inequity.
But the question of timing which arises in this case raises a different problem. A further analysis of the terms and effect of the settlement is needed in order to resolve it. The issue, it seems to me, is whether the settlement was subject to a condition which suspended its effect for any purpose until the sum due to be paid under it had been fully paid up by Babcock, or whether it was subject to a resolutive condition that the discharge of the plaintiff's claim was to be treated as void ab initio if the sum due under it was not paid.
The settlement itself was silent on these matters, but I think that the correct view of its nature was that it was to take effect as soon as the agreement was made as having disharged the deceased's claim of damages, subject to an implied resolutive condition which would render it void ab initio if the debt which was due under it was not satisfied. In Liverpool City Council v. Irwin  AC 239, Lord Wilberforce had regard to what the nature of the contract itself implicitly required in the search for the obligation which should be read into the contract, as essentials of the tenancy. At p. 270 Lord Fraser of Tullybelton said that the obligation was to be implied as a legal incident of the kind of contract which those landlords and those tenants had entered into. I think that the nature of a settlement of the kind which was entered into in this case requires that terms be read into it, subject only to a resolutive condition in the event of the debt not being satisfied, to the effect that the settlement puts an end to any further proceedings between the parties to it except those which are needed to enable the action to be stayed and the case taken out of court, and that the deceased's claim of damages are to be treated as satisfied so that the defendant is not exposed to the risk of contribution proceedings by any other concurrent tortfeasor. The same view would be taken if the plaintiff's claim had been dealt with by means of a judgment. The issuing of the judgment would be a bar to any further proceedings for damages for the same tort against the defendant or any other concurrent tortfeasor as from the date of the judgment, subject only to a resolutive condition in the event that the judgment was not satisfied.
In Reg. v. Turner  A.C. 357, 367H-368A Lord Reid said that, where a person takes a cheque in discharge of a debt, the discharge is presumed to be subject to a resolutive condition that if the cheque is dishonoured the discharge is void ab initio and the debt revives in its original form. That also was a case where the nature of the transaction required of necessity that an implied resolutive condition should be read into it. I would apply the same reasoning here and hold that the date as from which the claim of damages is to be treated as having been satisfied by reason of the settlement with the first concurrent tortfeasor is the date when the settlement was entered into, subject only to a resolutive condition which would deprive the settlement of that effect if the plaintiff was unable to recover the payment due under the settlement.
So I would hold that, as the settlement which the deceased entered into before his death was implemented in full by Babcock, nothing which it had agreed to pay having been left unpaid, its effect was to discharge the claim of damages against the other concurrent tortfeasors with effect from the date of the settlement. The plaintiffs cannot therefore satisfy the requirements of section 1(1) of the Fatal Accidents Act 1976, because the C.E.G.B would not have been liable, if death had not ensued, to an action of damages brought by the deceased in respect of the same tort. I would allow the appeal.
The respondents are the executors of the late David Alan Jameson ("the deceased"), who died on 24 April 1988 as a result of a malignant mesothelioma. Before he died he had commenced proceedings against his former employers Babcock Energy Ltd ("Babcock"). In those proceedings he had claimed damages for the mesothelioma which he averred he had developed through the negligence of Babcock as a result of contact with asbestos in the course of his employment with them during four periods between 1953 and 1958. These periods related respectively to work at Battersea Power Station, at Dewrance & Co.'s factory in South London, at Babcock's welding school in Birmingham, and at Castle Donnington Power Station in Derbyshire. On 30 March 1988 Babcock's solicitors paid £75,000 into court. The notice recording this which was sent to the deceased's solicitor stated that that sum, which included interest, was "in satisfaction of all the causes of action in respect of which the plaintiff claims." On 19 April 1988 his solicitors negotiated an oral agreement to settle the action for £80,000 plus costs. They sent a letter, without prejudice, to Babcock's solicitors by fax on that day, including a statement of their costs. On 20 April 1988 Babcock's solicitor wrote confirming the settlement at £80,000 plus costs at the stated sum which they also agreed. They enclosed a draft order for consent and return. That draft provided for the staying of all further proceedings (save for enforcing the terms of the order) upon certain terms including the payment of £80,000 in 14 days "in full and final settlement and satisfaction of all the causes of action in respect of which the plaintiff claims in the statement of claim." Four days later the deceased died. After that, payment was made of the balance of the settlement sum of the cost.
Thereafter his executors commenced proceedings against the Central Electricity Generating Board ("the Board"). The claim was for damages suffered by his widow in respect of loss of dependency and for bereavement. The case was based on the development by the deceased of mesothelioma as a result of the negligence of the Board during the periods between 1953 and 1954 when he worked at Battersea Power Station and between 1957 and 1958 when he worked at Castle Donnington Power Station, both of which power stations had been owned or occupied by the Board. These places and periods were the same as two of the places and periods referred to in the proceedings against Babcock. The proceedings initially included a claim under the Law Reform (Miscellaneous Provisions) Act 1934, but that was later abandoned as it was more than balanced by the money which had been received in the settlement and that sum had to be taken into account. There remained a claim under the Fatal Accidents Act 1976. Babcock was joined as a third party in the action. It was accepted that by virtue of section 4 of that Act (as amended by section 3(1) of the Administration of Justice Act 1982) no credit needed to be given for the money received in the settlement from Babcock. This feature in the case makes it a remarkably unattractive one from the point of view of the defendants. If the plaintiffs are correct in their submission the widow stands to gain not only the damages obtained by the deceased from Babcock but in addition the whole damages he could have recovered from the Board without any deduction in respect of the settlement with Babcock. It was suggested that if the result was inequitable an allowance might be made for the inheritance, but in strict law there seems to be no obligation to do so. It was not suggested that the terms of section 4 of the Act of 1976 should be so construed as to exclude the settlement sum. It was argued that for the executors now to proceed against the Board would be an abuse of process. But it seems to me too difficult to maintain such an argument. If the deceased would have been entitled to sue the circumstance that the settlement sum has passed to his widow where Parliament has provided that no deduction is to be made on that account does not in my view render the executors' claim an abuse of process. But this peculiarity of double recovery in the present case should not distract one from the critical issue of the entitlement of the deceased to have commenced proceedings against the Board. Had he so disposed of his estate that the widow did not inherit the sum precisely the same issue would remain. Accordingly I approach the matter without regard to this special feature.
Section 1(1) of the Act of 1976 imposes a liability to an action for damages for a wrongful act, neglect or default where the deceased if he had not died would have been entitled to maintain an action and recover damages in respect of that wrongful act, neglect or default against the person who would have been liable. It thus becomes critical for the executors that the deceased would have been entitled to take these proceedings against the Board at the moment of his death.
But here a second special feature of the case arises. By the time of his death there had been agreement to settle the case, but there had not been payment of the agreed sum. Whether an accord does or does not have the effect of achieving a discharge depends upon the terms of the agreement. The position in a case of contract was explained by Lord Atkinson in Morris v. Baron & Co.  A.C. 1 at p. 35, as follows:
It is open to the creditor to insist upon performance by the other party before the discharge is to be effective and in such a case the liability of the other will remain until performance has been made. On the other hand if the creditor has accepted in satisfaction the debtor's promise, as distinct from the performance of his promise, the original cause of action will be discharged from the date when the promise is made. Thus in British Russian Gazette and Trade Outlook Ltd. v. Associated Newspapers Ltd.  2 K.B. 616, the agreement there made was seen as one where the consideration was an executory promise and was enforceable at least by way of counterclaim. Scrutton L.J. observed (at p. 644) "The accord is the agreement by which the obligation is discharged. The satisfaction is the consideration which makes the agreement operative." As Greer L.J. recognised (at p. 654), the promise is valuable consideration and the agreement is enforceable at law. Looking at the exchange of letters in the present case I consider that the agreement reached by the time of the deceased's death was legally effective to achieve a discharge.
The significance of the accord in such a case as the present where the promise serves as consideration is the substitution of a contractual obligation for the original debt, illiquid in the case of a claim in tort. After the agreement for settlement has been concluded the original claim is superseded and a contractual claim put in its place. What the parties have done is to agree to the substitution for the original right and liability, contingent as they may have been, of a contractual obligation to pay, or even perform, something in return for a surrender of the claim, thereby innovating on the original relationship and superseding it. After the settlement has been agreed the rights and obligations of the parties are governed by the contractual provisions which they have made and unless these require for any reason to be annulled the agreement provides the measure of the respective rights and obligations of the parties in place of any previous claim or liability in respect of the matter in relation to which the settlement has been made. Actual satisfaction is only achieved when payment or performance on the agreed terms has been made. If that is done then the rights and obligations of the parties under the settlement agreement are spent.
A question could arise about the remedies of the creditor if the debtor fails in performance. Greer L.J. in the British Russian Gazette case said at p. 655 that the "only remedy" was to sue for damages if performance was refused. On the other hand where there has been a settlement but satisfaction has not been made it may well be thought that the plaintiff should be enabled to re-open the matter and if necessary seek his damages against another tortfeasor. This has certainly been recognised in Scotland. In Steven v. Broady Norman & Co. 1928 S.C. 351 a worthless decree which had been obtained against one wrongdoer was held to be no bar to an action against another who was alleged to be liable jointly and severally with the other. And in Arrow Chemicals Ltd. v. Guild 1978 S.L.T. 206 it was recognised that recovery from one of two persons alleged to be jointly and severally liable to the pursuer was only precluded where full reparation had been made and the case was continued in order to explore the alleged inability of one of the two to honour a decree which had been pronounced against him for payment.
It may be that the unsatisfied creditor could re-open a settlement on the ground of an implied condition in it for performance, or an implied resolutive condition covering the possibility of a failure in performance; but in the present case the agreed sum was paid and it is unnecessary to express a view on the point.
It was accepted before the Court of Appeal that on the assumption that both Babcock and the Board were liable they were to be regarded as several or concurrent tortfeasors. They would be on that assumption several tortfeasors causing the same damage. I shall refer to them simply as concurrent tortfeasors. It was open to the deceased to have commenced proceedings at the outset against both Babcock and the Board. Or he could have commenced proceedings against the one and either he or the Board could have brought the other into the proceedings at a later stage. But he chose to go only against Babcock. If matters had remained in that state at his death it could be said that he would have been entitled to maintain an action against the Board. But then the settlement intervened and the question is what effect that had.
One approach to the solution is by way of construction of the agreement. Certainly the parties could have expressed their agreement in terms which would have left the matter in no doubt. It could have been expressly provided that this was a settlement only of the deceased's claims against Babcock without prejudice to any claims he might make against the Board or anyone else and without prejudice to any liability Babcock might then incur by way of contribution to such a party in the event of a successful claim being made. Or it could have been expressly stated that the settlement was intended not only to resolve the rights and obligations as between the deceased and Babcock, but was also intended to free Babcock absolutely from any further liability by way of contribution to anyone else. Where the proceedings have been brought against both concurrent tortfeasors release of one may more readily be seen as a reservation of rights against another, as in Townsend v. Stone Toms & Partners (No.2) (1984) 27 B.L.R. 26, where the claims partially overlapped and account had to be taken of the sum recovered by agreement from the one party in the continuation of the action against the other.
Had the Board also been a party to the action and the settlement was made only with Babcock, it might more readily be construed that the deceased's rights against the Board, and Babcock's possible liability in contribution were to be preserved. But that was not the situation. The Board was never made party to the action. Nothing was said of any possible claim against the Board. Indeed it is a matter of agreed fact that Babcock was never informed of the possibility that any action would be taken against the Board by the deceased or his executors. The possibility of such further action played no part in the settlement.
I do not find the words used in the agreement in the present case readily open to a construction which solves the question one way or the other. The terms of the letters are too general to do that. The terms of the payment into court refer to all the causes of action, which might seem to be comprehensive, but are then qualified with the words "in respect of which the plaintiff claims" which may limit the scope to Babcock's liabilities to the deceased. That certainly appears to be the scope of the first paragraph of the draft order which the solicitors were exchanging as embodying their agreement before the deceased died. On the other hand in agreeing in terms of the fourth paragraph of the draft order that on payment of the balance of damages and agreed costs Babcock should be "discharged from any further liability in respect of the plaintiff's claim in this action" it may be that even a liability in contribution was intended to be released.
As I have already said, a plaintiff can make it clear in the agreement to settle the action whether or not he is reserving his right to go against another person. The question arises what view the law is to take if he has failed to make the position clear. Is it to be assumed that he is reserving his right, so that he must expressly state that he is not doing so? Or is it to be assumed that he is not reserving his right, so that he must expressly state that he is doing so? Where the matter is not resolved by the words used in the agreement in the context of the particular case one has to resort to considerations of policy and principle.
It is plain matter of policy to secure that litigation should be terminated and successive claims discouraged. That can be illustrated by the provision contained in section 4 of the Civil Liability (Contribution) Act 1978. Further it seems to me that the law should discourage any opening up of settlements which parties have concluded between themselves, with a view to analysing whether they are sufficient to secure what the parties believed they were securing, namely a fair compromise of the differences between them. The problem such as has arisen in the present case can be avoided by taking proceedings against all the potentially liable parties at the one time. As matter of policy it seems to me that where the matter is left in the air a settlement with one of several parties who are jointly and severally liable to the same plaintiff should involve a release of the others.
But beyond all of that the basic consideration both of policy and principle must be that while those injured by a tort committed by others should be compensated through the processes of the law, they should not be enabled to recover damages twice over. Such a result offends the basic principles of reparation, and, while it was accepted as a possible consequence of the operation of section 4 of the Fatal Accidents Act 1976 it is not to be regarded as an acceptable consequence of an accord and satisfaction. The principle is recognised in England in, for example, Bird v. Randall (1762) 3 Burr 1345, in Australia in Boyle v. State Rail Authority (1997) 14 N.S.W.C.C.R. 374 and in the United States of America in Latham v. Des Moines Electric Light Co. (1942) 26 N.W. 2d. 853.
It is necessary also to make some analysis of an agreement to settle. A claim for damages may have a value which does not equate with the quantification of the loss and injury which is claimed. This is not simply because it is an illiquid claim. A claim for an ascertained sum which is due and owing may correspondingly have a value which falls short of the ascertained sum because ,for example, there may be some technical difficulty in the proof of it, or more pragmatically because there is some doubt about the financial position of the debtor. In the case of a claim for damages there may be an uncertainty about the proof of the liability of the defendant there may be a variety of factors affecting the prospects of success and there may always be hazards in the process of litigation. So the value of the claim may well be less than the full amount of the debt. In light of such uncertainties the creditor may well feel that a just result can be achieved by a payment of the value of the claim, thereby avoiding the trouble and the uncertainties of insisting on his right to prosecute the matter to a judicial conclusion. So a settlement may be reached under which he would receive what may be seen as the value of the claim, which may or may not be close to the amount of the claim, depending on an assessment of the various factors, some doubtless imponderable, which may arise in the circumstances of the particular case. Such settlements are of course to be encouraged. If, as ought to be the case, the figure is reached after an arms' length negotiation, it can reasonably be assumed that the figure finally agreed upon does represent the full value of the claim. Each party has to balance the strengths and weaknesses of their respective positions and it is only after an assessment, or even a re- assessment, of these that the eventual figure is eventually identified.
What is then agreed and paid is a sum which represents the full value of the claim so that the indebtedness is thereby extinguished. What is paid is the present value of a possible future award. So it does not seem to me that in the ordinary case after settlement has been made and satisfied with the one defendant there can be a balance of the claim which is recoverable from another possible defendant. What the parties must be seeking to achieve is a conclusion to their respective rights and liabilities so as to extinguish them altogether for the future. It may be that the terms of the agreement for settling the action will themselves make it evident that the debtor is being completely discharged so as to bar the claimant from renewing the claim against him. But apart from that by operation of law it seems to me that having received the full value of his claim a vital ingredient has gone from his original cause of action so that he is no longer able to prosecute his claim. If he was allowed to do so that would offend against the principle that he would be getting all or part of his damages twice over.
Where the case has gone to trial and judgment has been awarded and satisfied the plaintiff should not be entitled to go against another concurrent tortfeasor in the same matter. The whole of his loss will have been assessed and quantified, and after payment his whole claim would be exhausted. This result appears to be in conformity with the position established in Scotland. In Balfour v. Baird & Sons 1959 S.C. 64 a steel dresser was awarded damages from one of his former employers for pneumoconiosis. He then endeavoured to sue another of his employers who had allegedly also caused his contraction of the pneumoconiosis, explaining that he had only received partial damages in the earlier proceedings and now sought to recover the balance from the other employer. His claim failed. It was held that having invited a court to give him full satisfaction for the whole of the loss and damages suffered by him and had won an award of damages that was an end of it. The damage had ceased to exist.
But exceptional circumstances may occur where there is a deficiency in the award and the plaintiff may be entitled to sue another concurrent tortfeasor for the balance of his claim. Such a course was allowed in Kohnke v. Karger  2 K.B. 670. That was a somewhat special case in so far as the first action had been taken in France where the one defendant, a driver and his employers, resided and where their assets were. The second action was brought in England where the other defendant resided and where it was assumed his assets were. The judge was satisfied that the assessment of damages in French practice would produce an award less than what would be regarded in England as full satisfaction and he made an award in the English action. But the case must be seen as depending upon its own rather unusual circumstances.
In principle it seems to me that where settlement is sought with one alone, where the others are not involved in the proceedings, the intention of the parties should usually be taken to be that they are achieving a complete termination to any claims by the creditor and a complete freedom for the future for the debtor. On the one hand the creditor is being fully compensated for the value of his claim so as to exhaust any right to pursue it further in any direction. On the other hand the debtor is being discharged from any possible liability in contribution so that the creditor would be in breach of the agreement were he to sue a third party and create such a liability. Particular circumstances and particular terms in the agreement may obviate such consequences, but, where the matter has been left open and unclear, it seems to me that those are the consequences which should follow upon the settlement of one co-obligant in a joint and several obligation which has been carried out in the absence of any other co-obligant.
The decision in Balfour v. Baird was carried a stage further in Carrigan v. Duncan 1971 S.L.T. (Sh.Ct.) 33 where the pursuer had settled his action against one party by the acceptance of a tender made in the court process which had been followed by a decree of the court awarding the sum which had been offered and accepted. It was held that where the pursuer had maintained the first action solely against one of the parties who might be jointly and severally liable, despite a defence to the effect that the other party had caused or contributed to the accident which gave rise to the claim, and had accepted a tender "in full settlement of the conclusions of the action," he was not entitled to bring proceedings against the other party although he asserted that the tender had been made on a basis of partial liability. The court held that the intention of the parties to the settlement "must be assessed objectively upon the basis of the decree itself in the context of the pleadings of the parties and of the terms of the tender upon acceptance of which the decree proceeded."
The decision in Carrigan has been followed in Australia. In Ruffino v. Grace Bros Pty Ltd.  1 N.S.W.L.R. 732 no distinction was recognised between judgments arrived at by settlement and judgments arrived at by judicial determination. Where the plaintiff had received a payment in his first action which could only be regarded as full satisfaction, that exhausted his rights, so that he was not entitled to take further proceedings against another party who might have been jointly and severally liable. A like view was taken in Boyle v. State Rail Authority (1997) 14 N.S.W.C.C.R. 374, where the defendants had all been sued together. The plaintiff settled with eight of the nine defendants, all of whom were jointly and severally liable, and sought to proceed against the ninth, it was held that there was insufficient evidence that the plaintiff had received the amounts of the settlement otherwise than as full compensation for his claim.
This is a case of allegedly concurrent tortfeasors, that is to say several tortfeasors causing the same damage. We were referred to certain cases relating to joint tortfeasors as distinct from several tortfeasors causing the same damage, but it is unnecessary to decide any question about joint tortfeasors in the present case, or indeed any question about concurrent or joint co-obligants in contract, as to which reference could be made to Deanplan Ltd. v. Mahmoud  Ch. 151. For present purposes it is enough to hold that the deceased in the present case would not have been entitled to commence proceedings against the Board at the time of his death. I would accordingly allow the appeal.