Summary

The Privy Council summarised the principles of election and merger of causes of action. The Court of Appeal (Trinidad and Tobago) had been wrong to conclude that by obtaining default judgment against a second defendant, a claimant in a personal injury action had made an unequivocal election which precluded her from proceeding against the first defendant.

Facts

The appellant (B), an ambulance driver, had been injured after lifting a heavy patient. She brought proceedings against the respondent (S), the regional health authority, for breach of contract and negligence for failing to train her in lifting techniques. S alleged that a company (T) was her employer, and T was joined to the proceedings as second defendant. B obtained default judgment against T but continued to pursue her claim against S. The court found that S was her employer but the default judgment was conclusive on the issue of liability. B therefore withdrew the default judgment and obtained judgment against S. However, the Court of Appeal (Trinidad and Tobago) found that the default judgment against T was a bar to a finding of liability against S.

Held

(1) Morel Bros & Co Ltd v Earl of Westmorland [1904] A.C. 11 established that where there was a conclusive election by claimants to adopt the liability of one of two persons alternatively liable, they could not afterwards make the other liable. The "adoption" of liability by a claimant meant the decision to choose one possible defendant over another as the one against whom the case was to be made. It presupposed that an election was genuinely feasible, in other words, that a case against either defendant could properly be made and that a decision as to which was to be selected had been consciously taken. As a matter of principle, where a claim against two possible defendants could be made and the espousal of a case against one defendant was necessarily inconsistent with the maintenance of a claim against the second defendant, a deliberate choice of one should preclude the continuance of a claim against the other, Morel applied. The principle in Morel would also apply where there was a genuine alternative liability situation, Scarf v Jardine (1881-82) L.R. 7 App. Cas. 345 applied. By contrast, where there was no joint contract or relationship of principal and agent and the obligations were several, a judgment in an action against one was no bar to an action against another. Furthermore, there was no foundation for the contention that because X obtained a judgment against Y (who was never a party to the contract) he could not afterwards obtain judgment on that contract against Z, who was the real contracting party, Isaacs & Sons v Salbstein [1916] 2 K.B. 139 considered (see paras 16, 19-21 of judgment). (2) In determining whether an unequivocal election had been made a number of essential features should be present. First, the person making the election must have determined that he would follow one remedy out of a range of two or more. That implied that the selected remedy would be pursued at the expense of the others that were available. Second, the choice must be communicated to the other party. Third, it must be communicated in a way that would lead the other party to believe that a choice of the nature required had been made, in other words, a deliberate preference of the chosen alternative over any other, Scarf applied (para.29). (3) Where the decision to obtain the default judgment could not be regarded as an abandonment of O's primary basis of claim the court should be slow to regard that decision as an unequivocal election. That did not mean that obtaining a default judgment could never amount to an unequivocal election, but the fact that such a judgment would almost certainly be obtained without any consideration of the merits was inescapably relevant to that question. O could not be regarded as having made an unequivocal election to concentrate on T. T might well have had the default judgment set aside and in doing so confirmed her primary case, namely that S was her employer. Further, O's claims against the defendants were based on separate causes of action. The premise on which the default judgment was obtained was that T was her employer. The subsequent claim against S was on the basis that S was the real contracting party. On those facts, there could be no question of her cause of action against S merging into the judgment which she had obtained against T. The default judgment did not amount to an unequivocal election on O's part, its existence was not a bar to her proceeding against S and it had not been necessary to set it aside (paras 26, 31-34, 38).

Appeal allowed