Baxter v Obacelo Pty Ltd & Anor

14 On the claimant's arguments, the essential elements in this defence were the settlement with Mr Whitehead and the payment of $250,000 in satisfaction of the judgment entered against him. The claimant's defence filed on 11 May 1988 had relied on the release of Mr Whitehead in the deed of release as operating to release the claimant, but the application was not maintained on that ground. 15 The claimant's case on the application was that Pt 13 r 5 was enlivened, and the proceedings against him should be dismissed, because the settlement with Mr Whitehead and the payment of $250,000 in satisfaction of the judgment entered against him meant that the proceedings against the claimant are bound in law to fail or futile. It was common ground that any liability of Mr Whitehead and the claimant to the opponents was a joint liability. The claimant submitted -

(i) that judgment against Mr Whitehead as one joint tortfeasor and satisfaction of the judgment barred further proceedings against the claimant as the other joint tortfeasor, or alternatively precluded recovery of any judgment sum from the claimant; and

(ii) as a separate matter, that the settlement with Mr Whitehead and payment of the settlement amount barred any further proceedings against the claimant. 16 The Master refused the application on 21 August 1998. The Judge dismissed the appeal from the Master's decision on 25 May 1999. The application for leave to appeal was filed on 17 June 1999.

Part 13 r 5 or Pt 32 r 2? 17 The Master and the Judge dealt with the application, as was appropriate, in accordance with the principles for which General Steel Industries Inc v Commissioner for Railways (1964) 112 CLR 125 is conventionally cited. In short, in accordance with those principles the opponents' proceedings should not have been summarily terminated unless their claims were so obviously untenable that they could not possibly succeed. If the claimant's submissions were not manifestly correct, and the opponents therefore had an arguable case that the relevant matters of defence did not bar further proceedings against the claimant or preclude recovery of any judgment sum from the claimant, the application had to be refused. While differing slightly, the reasons of the Master and the Judge were to the effect that they were not persuaded that the claimant's submissions were manifestly correct. 18 There was discussion in this Court of translating the application into the decision of a separate question or separate questions pursuant to Pt 31 r 2 of the Rules, so that the claimant's submissions could be the subject of a definitive ruling. It was said that the hearing of the proceedings against the claimant would take about two weeks. There was obvious merit in this Court determining, if it be so, that the proceedings are bound to fail or futile, rather than leaving the opponents to litigate an arguable case to possible failure or futility. 19 The opponents sought the decision of separate questions. They admitted the facts in paras 16-22 of the defence for the purposes of any such decision. The framing of the questions they proposed owed much to the detail of the claimant's arguments in support of his submissions. The questions were - "(a) whether the claims brought by the Opponents against Philip Richard Whithead and Phillip Julius Baxter in the proceedings (no 14486 of 1987) are in the one action; and (b) whether Section 5(1)(b) of the Law Reform (Miscellaneous Provisions) Act 1946 has any operation in the present proceedings;

(c) whether the consent Judgment obtained against Mr Whitehead in the proceedings and which has been paid: (i) bars or prevents the Opponents from seeking to obtain Judgment against the Claimant in the proceedings; or

(ii) provides any defence to the Claimant in the proceedings other than a defence to the effect that there should be deducted from any Judgment Sum in the proceedings a sum to represent the sum paid to the Opponents by Mr Whitehead pursuant to the consent Judgment." 20 I do not think that the questions as framed should be decided. If there is to be decision of a separate question or separate questions, it should be by reference to the relevant paragraphs of the defence understood as amplified in the facts earlier set out in these reasons having regard to the wording of the deed of release and terms of settlement. The question should be whether the matters of defence in paras 16-22 of the defence filed on 11 June 1998 provide a defence to the opponents' claim against the claimant. A question in those terms would permit the Court to rule on the claimant's submissions, founded on the paragraphs of the defence, without the fragmentation inherent the questions proposed by the opponents. 21 The opponents were prepared to modify their proposed questions so that the Court should decide "the issue … raised by paras 16-22 of the defence". In my view this accommodates the separate question I have identified. The claimant's counsel was not able to consent to the decision of a separate question or separate questions. He could not obtain instructions, and expressed "fear of perhaps unknown factors" in taking that course. He said that there may be "peripheral facts", the nature of which he could not state, material to the separate question or separate questions, but did not propose putting further facts before the Court: indeed, the admission of the facts in the defence left no room for further facts. 22 It is unfortunate that recourse to Pt 31 r 2 was not earlier considered. In the circumstances of this case, in which the relevant facts were not in dispute and the claimant's submissions as to their consequences in the proceedings involved arguments of some complexity, such a course is preferable to determination of an application for summary dismissal. In my opinion it is in the interests of effective administration of justice between the claimant and the opponents, as well as a proper use of the Court's time, that there should be separate decision of the question I have identified. 23 This Court may exercise the power conferred by Pt 31 r 2 (see s 44 of the Supreme Court Act 1970). I consider that it should do so notwithstanding the stated position of the claimant's counsel. Extensive argument may be entertained to demonstrate that a plaintiff's claim is obviously untenable (see General Steel Industries Inc v Commissioner for Railways at 130), but even brief appreciation of the arguments in this case suggests that it will be difficult, if impossible, to rule that the claimant's submissions are manifestly correct. However, if there be a definitive ruling upholding those submissions, albeit not as manifestly correct, the proceedings against the claimant will be effectively at an end; if there be a definitive ruling rejecting the submissions, the parties will be able to evaluate their prospects in the proceedings accordingly. The application for leave to appeal will become redundant, and should be dismissed, but the claimant's submissions in that application and on the substance of the appeal will be fully considered in the decision of the separate question. 24 In what follows I will continue to refer to the parties as the claimant and the opponents.

Some law concerning tortfeasors 25 At common law joint tortfeasors, that is, persons responsible for the same wrongful act causing loss to a person, were jointly and severally liable for the whole of the loss suffered by the person. Where there was a joint tort there could be only one action to recover the whole of the damages to which the person was entitled, and the cause of action was said to be one and indivisible. The theoretical basis of joint liability meant that, although the plaintiff could sue one of the tortfeasors separately or two or more of them jointly - (i) only one judgment for one sum of damages could be obtained in an action against a number of joint tortfeasors (a rule as old as Sir John Heydon's Case (1612) 11 Co Rep 5a; 77 ER 1150, see XL Petroleum (NSW) Pty Ltd v Caltex Oil Australia Pty Ltd (1985) 155 CLR 448 at 454-6); (ii) the cause of action "merged in the judgment" so that judgment against one joint tortfeasor released the other or others even if the judgment was unsatisfied (the so-called rule in Brinsmead v Harrison (1871) LR 7 CP 547, although found as long ago as Brown v Wootton (1605) Cro Jac 73; 79 ER 62 and other reports; see XL Petroleum (NSW) Pty Ltd v Caltex Oil Australia Pty Ltd at 456); and (iii) the release of one joint tortfeasor, by deed or for consideration released the other or others (Cocke v Tennor (1614) Hob 66; 80 ER 214; Duck v Mayeu (1892) 2 QB 511; Thompson v Australian Capital Television Pty Ltd (1996) 186 CLR 574 at 581, 603-4). 26 The common law position of joint tortfeasors was to be distinguished from that of concurrent tortfeasors, that is, persons responsible for separate wrongful acts contributing to loss to a person. Concurrent tortfeasors were severally liable for the whole of the loss suffered by the person, but because their liability was several rather than joint and several there could be multiple actions and judgments, and neither judgment against one tortfeasor nor release of one tortfeasor released the other or others. 27 But a further common law rule could come into play to the effect that full satisfaction of the loss suffered by the plaintiff, in particular by satisfaction of a judgment obtained by the plaintiff against one tortfeasor, would provide a defence to the other or others. 28 In Castellan v Electric Power Transmission Pty Ltd (1967) 69 SR 159 Asprey JA said (at 180-1) - "The facts proved at the trial establish - and it was not contended otherwise upon these appeals - that EPT and BHP were in relation to the plaintiff concurrent tortfeasors (see The Seacombe; The Devonshire [(1912) P 21 at 65-66], per Buckley LJ; The Koursk [(1924) P 140] to employ the terminology which seems to be in modern use and may have stemmed from Glanville Williams' Joint Torts and Contributory Negligence . In this connection two matters should be observed. Firstly, at common law each of two concurrent tortfeasors, that is to say, independent tortfeasors whose acts concur to produce a single damage to a plaintiff, had to be sued by the plaintiff in separate actions though each such tortfeasor was responsible for the full amount of the damage suffered by the plaintiff. … Secondly, at common law satisfaction by a concurrent tortfeasor of the damage sustained by a plaintiff operated to discharge the liability to the plaintiff of any other concurrent tortfeasor responsible for the same damage ( United Australia Ltd v Barclays Bank Ltd [(1941) AC 1], per Viscount Simon LC at pp 20-21 and per Lord Porter at p 50; Glanville Williams, Joint Torts and Contributory Negligence , par 9 at p 33; Street on Torts , 3rd ed, pp 490-491). At common law judgment against one joint tortfeasor was a bar to a further action by the plaintiff against another joint tortfeasor liable in respect of the same damage ( Genders v Government Insurance Office of NSW [(1959) 102 CLR 363 at 377]) for the reason that there was not only one damnum but also one injuria. The plaintiff only had one cause of action, albeit he may have had two or more possible defendants. When the plaintiff obtained judgment against the first defendant joint tortfeasor, the cause of action against all the other joint tortfeasors merged in the judgment, even if the judgment remained unsatisfied, and its place was taken by the rights created by the judgment ( Halsbury's Laws of England , 3rd ed, vol 22, par 1661) - transit in rem judicatam. On the other hand, judgment against one concurrent tortfeasor did not prevent the plaintiff obtaining judgment against another concurrent tortfeasor liable in respect of the same judgment for the reason that, whilst there was only one damnum, there was a separate injuria for which each concurrent tortfeasor was liable. The plaintiff in such a case had a separate cause of action against each of the concurrent tortfeasors. There were as many separate causes of action as there were concurrent wrongdoers. But - and this is the important matter in the present case - if the judgment against the first concurrent tortfeasor was satisfied, even by a stranger to the wrongdoing, there was a bar against any second or subsequent action against any other concurrent tortfeasor's liability in respect of the same damage, not upon the principle "transit in rem judicatam", but upon the doctrine that double satisfaction cannot be recovered by a plaintiff in respect of the wrong done to him (see Freshwater v Bulmer Rayon Co Ltd [(1933) Ch 162 at 173-175, 185-187]; United Australia Ltd v Barclays Bank Ltd [(1941) AC 1]; Prosser, Law of Torts , 3rd ed, Ch 8, par 45). It is scarcely necessary to point out … that this doctrine of satisfaction is quite distinct from the principle that a cause of action merges in the judgment (see Prosser, supra) ... ".

29 In the same case, Walsh JA said simply (at 173) that, the plaintiff's verdict against EPT having been satisfied, he would not be permitted to recover further damages from BHP: "He could not obtain double satisfaction". His Honour later said (at 176) - "I am prepared to assume that it was a rule of the common law that, if an injured person obtained judgment and also satisfaction against one tortfeasor, the liability of another concurrent tortfeasor was thereby discharged, although there is some ground for thinking that the source of the inability to maintain a further action in such cases was an equitable principle which would preclude the plaintiff from obtaining double satisfaction. Cf. United Australia Ltd v Barclays Bank Ltd [(1941) AC 1 at 20]. But at all events his further action could be defeated, and for present purposes it may not matter whether this would be done by a plea at common law of the former judgment and satisfaction or by a perpetual stay of the action or by an injunction." 30 In D'Angola v Rio Pioneer Gravel Co Pty Ltd (1979) 1 NSWLR 495 Reynolds JA, with whose judgment Hutley and Mahoney JJA agreed, said (at 499-500) - "The worker suffered one damage which resulted in two judgments in respect thereof, one of which has been satisfied in full. It raises the question of whether, in cases where concurrent tortfeasors have each caused the same damage, but where a different judgment debt arises, whether by operation of a defence, or by the verdict of a different jury, satisfaction of one judgment exhausts the rights of the judgment creditor. In my view, the measure of the plaintiff's loss having been determined by the jury, when he has received that measure his rights are exhausted. The law is undoubted that, in the case of concurrent tortfeasors, satisfaction of a judgment obtained against any one of such tortfeasors exhausts the plaintiff's rights. It does not matter whether the basis for this rule is that the satisfaction works a discharge of judgments obtained against another for the same injury, or whether it lies in an equitable doctrine designed to prevent unjust enrichment by double compensation. The rule, so far as concurrent tortfeasors are concerned, remains unaffected by the Law Reform (Miscellaneous Provisions) Act 1946. The authorities bearing on this subject have been collected by Asprey JA in Castellan v Electric Power Transmission Pty Ltd [(1967) 69 SR (NSW) 159, at pp 180-182]." 31 Gummow J referred to this same rule in Thompson v Australian Capital Television Pty Ltd when, after referring to the rules concerning joint tortfeasors, he said (at 608, citations omitted) - "The principle given expression by these rules is to be distinguished from that against double satisfaction. Where the wrongdoers were concurrent rather than joint tortfeasors, the entry of judgment in an action against one was no bar to other actions against those tortfeasors because the plaintiff had a distinct cause of action against each of them. However, even here, once the plaintiff had fully recouped the loss, of necessity the plaintiff could not thereafter pursue any other remedy the plaintiff might have or which the plaintiff might earlier have pursued. Having recouped the whole of the loss, any further proceedings would, as it recently was put by the Judicial Committee, 'lack a subject matter'. The satisfaction might have been provided even by a stranger to the wrongdoing. It appears that satisfaction of the former judgment could be asserted by a plea in bar or a plea in estoppel to any later action of law. Moreover, equity would interfere by injunction to restrain the plaintiff receiving double satisfaction upon execution of a plurality of judgments which had been recovered by the plaintiff."

32 The citations by his Honour included Castellan v Electric Power Transmission Pty Ltd, specifically the judgment of Asprey JA at 180-1. The citation for further proceedings lacking a subject matter was Tang Man Sit v Capacious Investments Ltd (1996) AC 514 at 522, where Lord Nicholls' explanation of the limitation on a plaintiff's freedom to sue successively two or more persons who were liable to him concurrently included - "A third limitation is that a plaintiff cannot recover in the aggregate from one or more defendants an amount in excess of his loss. Part satisfaction of a judgment against one person does not operate as a bar to the plaintiff thereafter bringing an action against another who is also liable, but it does operate to reduce the amount recoverable in the second action. However, once a plaintiff has fully recouped his loss, of necessity he cannot thereafter pursue any other remedy he might have and which he might have pursued earlier. Having recouped the whole of his loss, any further proceedings would lack a subject matter. The principle of full satisfaction prevents double recovery."

33 So far as operating following satisfaction of a judgment, this rule against double satisfaction could not affect the common law position of joint tortfeasors, because the judgment against one joint tortfeasor without more released the other or others - satisfaction of the judgment did not matter. Hence Asprey JA was at pains to distinguish what his Honour called the doctrine of satisfaction from the merger of the cause of action in the judgment in the case of joint tortfeasors, and these statements of the rule are in relation to the position of concurrent tortfeasors. However, although principally stated as the consequence of satisfaction of a judgment, the rule against double satisfaction can also operate to provide a defence following satisfaction of a plaintiff's loss without a judgment in his favour: see later in these reasons. 34 Apart from providing a defence to another tortfeasor when the plaintiff's loss has been fully satisfied, by the rule against double satisfaction an amount recovered by the plaintiff from a joint or concurrent tortfeasor goes in diminution of the damages which will be awarded against the other tortfeasor or tortfeasors: see for example Townsend v Stone Toms & Partners (1981) 2 All ER 690; Boncristiano v Lohmann (1998) 4 VR 82; CSR Ltd v D'Arcy (1999) NSWCA 216. At its heart may be the court's power to prevent abuse of its process, see Registrar-General (NSW) v Behn (1981) 148 CLR 562 at 569 and Deputy Commissioner of Taxation v Richard Walter Pty Ltd (1995) 183 CLR 168 at 214. 35 Section 5(1) of the Law Reform (Miscellaneous Provisions) Act 1946 ("the LR Act"), adopting s 6(1) of the Law Reform (Married Women and Tortfeasors) Act 1935 (UK) ("the LRUK Act"), changed the common law in relation to joint and concurrent tortfeasors. So far as presently material it provided - "5(1) Where damage is suffered by any person as a result of a tort (whether a crime or not): (a) judgment recovered against any tort-feasor liable in respect of that damage shall not be a bar to an action against any other person who would, if sued, have been liable as a joint tort-feasor in respect of the same damage; (b) if more than one action is brought in respect of that damage by or on behalf of the person by whom it was suffered … against tort-feasors liable in respect of the damage (whether as joint tort-feasors or otherwise) the sums recoverable under the judgments given in those actions by way of damages shall not in the aggregate exceed the amount of the damages awarded by the judgment first given, and in any of those actions, other than that in which judgment is first given, the plaintiff shall not be entitled to costs unless the court is of opinion that there was reasonable ground for bringing the action …" 36 Section 5(1)(a) was directed to the rule in Brinsmead v Harrison. It clearly abolished the rule where successive proceedings were brought against different joint tortfeasors. In Wah Tat Bank Limited v Chan (1975) AC 507 it was held that, notwithstanding the words "shall not be a bar to an action against any other person", it also abolished the rule where the joint tortfeasors were sued in the same proceedings. The reasoning in the advice of the Judicial Committee was that the action referred to was a hypothetical action - "It supposes such an action being brought against both A and B and lays down that if in such a hypothetical action B would, under the common law, have been held liable if sued to judgment, then the actual judgment already recovered against A shall not be a bar to an action against B". (at 578)

37 The decision in this respect was followed by the Court of Appeal in England in Bryanston Finance Ltd v de Vries (1975) QB 703, and the result in both decisions was accepted in the High Court in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd (see per Gibbs CJ at 458). 38 In XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd it was further held that the effect of s 5(1)(a) was that separate judgments, differing in amounts, could be recovered against joint tortfeasors. Gibbs CJ said (at 459-60) - "Once it is accepted that more than one judgment may be given against joint tortfeasors for damages caused by a joint tort, whether damages are given in the same or in different proceedings, there can remain no foundation for the rule that only one sum can be awarded by the different judgments. The reason for the rule was that there was only one cause of action against the joint tortfeasors, but that is no longer the position - the statute has abolished, "in its entirety" the old common law principle that a person who suffers damage by a joint tort has only one cause of action which merges in the first judgment recovered in respect of it. Surely the statutory provision was not intended to abolish only the doctrine of merger, for it was not primarily directed to the question of merger, and there is no reason for selecting one aspect of the principle rather than another as that which it was intended to affect; the whole principle should be held to have gone. It seems to me impossible now to hold that there is any principle that would prevent a plaintiff from recovering different sums from different joint tortfeasors if he brings separate actions against them, provided that some are liable for exemplary damages and others are not, and the same must be true if the joint tortfeasors are all sued in one action."

The other members of the court relevantly agreed with his Honour, Brennan J stating in his separate reasons (at 466) that "the unity of the cause of action against all joint tortfeasors is severed by s 5(1)(a)". 39 Then in Thompson v Australian Capital Television Pty Ltd it was held, addressing the equivalent to s 5(1)(a) of the LR Act in s 11(2) of the Law Reform (Miscellaneous Provisions) Act 1955 (ACT), that the effect of s 5(1)(a) was to abolish the common law principle that the release of one joint tortfeasor released the other or others. The joint judgment of Brennan CJ and Dawson and Toohey JJ included, after reference to what had been said by Gibbs CJ and Brennan J in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd - "Similarly, under s 11(2) of the ACT Act it is no longer the case that the victim of a tort committed by joint tortfeasors has only one cause of action; the cause of action is no longer one and indivisible. The concept of a single wrong and a single cause of action having gone, the rule that a release given by one joint tortfeasor releases any others must have gone with it, for that rule is nothing more than another aspect of the same thing, namely, that there is only one cause of action against all joint tortfeasors in respect of the one tort. In other words, once the cause of action is by statute no longer one and indivisible, there is no conceptual basis for the rule that the release of one joint tortfeasor releases the others. The rule must therefore be taken to have been impliedly abolished by the statute." (at 584)

No doubt this explains why the claimant did not maintain his application in reliance on the release of Mr Whitehead in the deed of release, but rather relied on the settlement and the payment of the $250,000 in satisfaction of the judgment entered against him. 40 Section 5(1)(b) limited the recovery of damages where more than one judgment had been given against joint or concurrent tortfeasors. It certainly applied when the judgments were in separate proceedings. One of the claimant's arguments involved that it applied also when the judgments were in the same proceedings, and I will return to s 5(1)(b). The "sanction in damages" previously in s 6(1) of the LRUK Act has been removed in the UK, see now Civil Liability (Contribution) Act 1978 (UK) s 4, but remains in the LR Act. 41 Section 5(1) did not affect the position of concurrent tortfeasors under the rule against double satisfaction. In Castellan v Electric Power Transmission Pty Ltd Asprey JA said at (181-2) - "Paragraphs (a) and (b) of s 5(1) in Pt III of the Act are concerned with removing the operation of the common law rule that the recovery of judgment against one of several joint tortfeasors liable in respect of the same damage worked the discharge of the liability of the other joint tortfeasors thus, in this respect, placing joint tortfeasors in the same position as are concurrent tortfeasors at common law … . No other statutory provision appears to appertain to the situation under consideration. I should not think that the doctrine against double satisfaction, well established in the common law and embedded in equitable principles, should be regarded as abrogated by the statute without clear words or necessary implication. There are no such words and I can gather no such implication from sections which are plainly directed at other branches of the law. Hence, in my view, the principle of the common law (which is quite separate and distinct from the procedure as to joinder of defendants and from the rules as to merger of causes of action by judgments and as to contribution between tortfeasors) that satisfaction by one concurrent tortfeasor discharges the liability to the plaintiff of another person alleged to be a concurrent tortfeasor would appear to be quite unaffected."

In D'Angola v Rio Pioneer Gravel Co Pty Ltd , in the passage earlier set out, Reynolds JA said that the rule, so far as concurrent tortfeasors are concerned, remained unaffected by the LR Act.

The claimant's arguments 42 Against the background of the accepted law concerning tortfeasors, I turn to the claimant's submissions. The submissions came down to three separate arguments. Neither the claimant nor the opponents suggested that the fact that Mr Whitehead was alleged to owe a contractual duty of care to the opponents as well as a tortious duty of care was material to the arguments.

(a) Satisfied judgment precluding recovery 43 It is convenient to deal first with the submission that the satisfied judgment against Mr Whitehead precluded recovery of any judgment sum from the claimant. The argument was that, by force of s 5(1)(b) of the LR Act, the opponents could not recover any judgment sum from the claimant because they could not recover more than the amount of $250,000 in the judgment against Mr Whitehead which they had already recovered. If so, it was said, while there could be a judgment against the claimant for (say) $500,000, the judgment would in practice be unenforceable; the proceedings would realistically be futile, and should be summarily dismissed because their continuation against the claimant would be an abuse of the process of the Court. 44 Involved in this argument, and essential to its acceptance, was that s 5(1)(b) applies where there are two or more judgments in the same proceedings. Even if it does, it may not be correct to regard the opponents' proceedings as futile and an abuse of process, but in my opinion s 5(1)(b) does not apply where the judgments are in the same proceedings. 45 In terms s 5(1)(b) does not so provide, beginning with the words, "if more than one action is brought" and later referring to the judgments given "in those actions". The reasoning in Wah Tat Bank Limited v Chan by which s 5(1)(a) applied where joint tortfeasors were sued in the same proceedings is not material to s 5(1)(b). Moreover, in Wah Tat Bank Ltd v Chan s 5(1)(b) was contrasted with s 5(1)(a), and it was said (at 518) that it had - " … been rightly pointed out that para (b) does not contemplate a single action but only a number of actions; moreover it limits only the amount of money to be awarded in judgments which may be recovered after the judgment in the first action and gives a discretion as to costs only in actions subsequent to the first. This is certainly true. It is argued that it follows from this that since paragraph (b) applies no limit to the amount recoverable in judgments given in one action against joint tortfeasors and makes no provision for any special discretion as to costs in such an action, paragraph (a) cannot be intended to apply to separate judgments given in one action. Their Lordships cannot accept this argument. Paragraph (b) is clearly devised merely to discourage the multiplicity of actions which the old rule was designed to prevent. Since more than one judgment being given in a single action has nothing to do with a multiplicity of actions, there is no reason why any express provision should be made to limit the amount of damages recoverable under such judgments nor to give any special discretion in respect of costs."

46 Authority is, however, a little more complicated than this acceptance that s 5(1)(b) applies only where the judgments are in successive proceedings. 47 In Bryanston Finance Ltd v de Vries Lord Denning MR seems to have regarded s 6(1) of the LRUK Act as limiting recovery where more than one judgment had been given in the same proceedings. His Lordship's reasons, and those of the other members of the court, are material also to whether a satisfied judgment is a bar to further proceedings (see the next of the claimant's arguments), and it is convenient now to go to the reasons in their wider scope. 48 In that case the plaintiffs brought proceedings claiming damages for libel from two defendants, the alleged libel being publication to clerical staff and to a printer of letters and a circular intended to be sent and distributed by the defendants. The defendants were said to be joint tortfeasors (see at 721, 729). One of the defendants, Lord Carbery, settled with the plaintiffs on terms which included judgment for damages of £1,000. The £1,000 was described in the consent orders as "his proportion of the damages". Whether the judgment sum had been paid or the judgment had been otherwise satisfied was not established in the evidence, although the Court of Appeal was told that the judgment sum had not been paid. After a hearing, judgment was given against the other defendant, Mr de Vries, for damages of £500. 49 Lord Denning MR referred to the rule in Brinsmead v Harrison and its alteration by the LRUK Act, noting (at 721) that the common law rule had applied not only to successive actions but also to a single action. He then said (at 722) - "The law now is that if the first judgment is satisfied , it is a bar to a second action. But if the first judgment is not satisfied , the plaintiff is able to bring a second action against the other wrongdoer and get judgment against him. The damages awarded in the second action may be more than in the first. But when it comes to levying execution, the plaintiff is not allowed to recover in total more money than the amount awarded in the first action: and he does not get any costs of the second action unless the judge thinks it was reasonable to bring it. That statute does not, in terms, apply to a single action against two joint tortfeasors. But I have no doubt it should be taken to do so. If the plaintiff takes judgment against one of the defendants for an ascertained sum, and it is satisfied, it is a barrier to his going on against the other. But if the judgment is not satisfied, the plaintiff is able to go on against the other wrongdoer and get judgment against him, but he cannot get more in total than against the first. Since writing this judgment, I find that the Privy Council has decided likewise: see Wah Tat Bank Ltd v Chan Cheng Kum (1975) AC 507." 50 After dealing with the application of s 5(1)(a) to judgments in the one proceedings, Lord Diplock said at (732-3) - "I do not think that support for giving any more restricted effect to paragraph (a) is to be derived from the fact that paragraph (b) deals only with cases where the judgments in respect of the same damage have been recovered in separate actions, and omits to deal with cases where separate judgments are recovered in the same action. This paragraph applies alike to cases where the damage results from a joint tort and cases where independent torts committed by different tortfeasors are each contributing causes of the same damage to the victim. The casus omissus is thus not confined to joint torts, but covers also separate torts that contribute to the same damage. If the tortfeasors liable in respect of that damage, whether as joint tortfeasors or otherwise, are sued in the same action and the court which tries the action assesses the damages, it will ex hypothesi award the same amount of damages against each of the tortfeasors. It would only be where a separate judgment had been entered by consent against one of the tortfeasors before the court itself had assessed the damages that the possibility would arise of there being separate judgments for different amounts of damages in the same action. That the draftsman of the Act overlooked this possibility may well be accounted for by the already prevalent use of the Tomlin order for compromising proceedings against one of several defendants to an action. Its continued prevalence has been demonstrated by the fact that in the 40 years since the Act was passed the instant case provides the first example in this country of a separate judgment being entered by consent against one joint tortfeasor in an action which was still proceeding against another joint tortfeasor. Now that it is for the first time confronted with the casus omissus this court must deal with it by applying to it by analogy those principles that can be discerned as underlying the express provisions of section 6 of the Act." 51 The analogous principles then described by his Lordship were to the effect that the assessment of damages or of contribution by the judge or jury should pay no regard to the amount of an earlier consent judgment against another defendant. 52 Diplock LJ then said (at 733) - "Before leaving this part of the case, however, I should deal briefly with the suggestion that the judge ought to have proceeded on the assumption that the consent judgment against Lord Carbery had been satisfied by the time of the trial. Had this in fact been true it would have been a good defence to the claim to recover damages against Mr de Vries for the publication of the defamatory circular to his clerical employees; but we know that it was not true."

53 Lawton LJ noted (at 739) that the trial judge had been concerned with whether the consent judgment had been satisfied - " … because if it had, no judgment could be entered against Mr de Vries. The plaintiffs would have had their remedy: they could get no more."

He then said (at 740) - "Part of the difficulty arose from the trial judge applying the wrong test. He thought that he was entitled to give judgment against Mr de Vries if he was satisfied, as he was, that the plaintiffs in taking a consent judgment against Lord Carbery had not intended to release Mr de Vries. He did not appreciate that judgment could not be given against Mr de Vries if the consent judgment had been satisfied."

54 Some observations may be made about these passages so far as they concerned the equivalent to s 5(1)(b). First, neither Diplock LJ nor Lawton LJ rested the effect of a satisfied judgment against Lord Carbery on s 5(1)(b). Neither seems to have had it in mind in that connection, since their Lordships spoke of a bar against judgment, not a restriction on recovery. Secondly, although Diplock LJ saw a casus omissus, he did not extend the ambit of s 5(1)(b) in relation to recovery in order to deal with it. In fact the occasion to do so did not arise. His Lordship turned to assessment of damages, and said that the trial judge had acted correctly in ignoring the amount of the earlier consent judgment. Thirdly, Lord Denning MR did not distinguish between s 5(1)(a) and s 5(1)(b), but spoke generally of "the statute" applying to a single action against two tortfeasors. Wah Tat Bank Ltd v Chan, which he cited as a decision "likewise", decided that s 5(1)(a) applied to a single action against two tortfeasors, but did not decide that s 5(1)(b) applied in that situation - in fact, the Judicial Committee accepted the opposite view. With respect, the separate ambit of s 5(1)(b), which did not form part of the reasoning to the result, may not have been considered by his Lordship 55 In XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd Gibbs CJ noted (at 458) the construction given to s 5(1)(a) by the Judicial Committee in Wah Tat Bank Ltd v Chan, and that their Lordships had considered that - " … since par (b) was designed to prevent a multiplicity of actions there was no reason why its provisions should have been extended to apply to the case where more than one judgment is given in a single action."

56 His Honour then said (at 458) - "Soon after that decision was given the Court of Appeal in England followed and applied it in Bryanston Finance Ltd v de Vries . That Court held that although s 6(1)(a) of the Law Reform (Married Women and Tortfeasors) Act 1935 does not in terms apply to a single action against two joint tortfeasors it does apply to such an action as well as to successive actions. Their Lordships held that the effect of this is that if a plaintiff takes judgment against one of two defendants for an ascertained sum, and it is not satisfied, it is no bar to his obtaining judgment against another, although the plaintiff cannot recover more under the second judgment than he could have recovered under the first. If the judgment has been satisfied it is a bar (or defence) against any further judgment. Their Lordships were not, however, speaking of a case in which one defendant was liable to pay exemplary damages and another was not. Lord Diplock, whose reasoning was substantially the same as that of the Judicial Committee in Wah Tat Bank Ltd v Chan , agreed that s 6(1)(a) had 'the result of abolishing in its entirety the technical common law doctrine of merger of the cause of action against all joint tortfeasors in the first judgment recovered against any one of them'. Although the words of the sub-section are elliptical and somewhat obscure I respectfully agree with the result reached by the Judicial Committee and the English Court of Appeal." 57 His Honour's summary of the holding in Bryanston Finance Ltd v de Vries did include "that the plaintiff cannot recover more under the second judgment than he could have recovered under the first". On the facts of that case, the judgments were in the same proceedings. But again the separate ambit of s 5(1)(b) was not in question, and his Honour's agreement with the result reached by the Judicial Committee and the Court of Appeal did not go beyond the application of s 5(1)(a) when there was only one action. 58 It may be added that in XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd Brennan J referred to s 5(1)(b) in terms limiting its application to successive actions: his Honour said (at 466) - "In the ordinary case, however, s 5(1)(a) and (b) appear merely to provide machinery which preserves the common law liability of joint tortfeasors while removing the bar to enforcement which arose when a judgment was given against one tortfeasor. When damages are awarded only in respect of the damage actually suffered by the plaintiff - ie, compensatory damages - the damages assessed in each action or against the respective defendants in a single action are likely to be assessed in the same amount: see Wah Tat Bank Ltd v Chan . If the evidence in successive actions were to lead to differing awards of compensatory damages, s 5(1)(b) would prevent the judgment creditor from receiving an amount exceeding the amount first awarded." 59 I do not think that either Bryanston Finance Ltd v de Vries or XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd stands as authority for s 5(1)(b) confining recovery where more than one judgment has been given in the same proceedings. It is necessary to give effect to the language of s 5(1)(b), and to its evident purpose of preventing excessive recovery by a plaintiff by successive actions following the statutory creation of multiple causes of action against the joint tortfeasors. The language is clear, and the purpose is not promoted by extending the ambit of s 5(1)(b) to limit recovery in the one proceedings. Indeed, to do so would act as an undesirable deterrent to settlement. 60 If joint or concurrent tortfeasors are sued in the same proceedings, the judgments for compensatory damages will be for the same loss suffered by the plaintiff and in the same amount, and there will be no occasion for the limitation of recovery. If the judgments are for different amounts because one of the tortfeasors must pay exemplary damages, s 5(1)(b) may not apply to those damages (see XL Petroleum (NSW) Pty Ltd v Caltex Oil (Australia) Pty Ltd at 469-70 per Brennan J), but if it does there will be no reason to limit recovery to a lower amount simply because the judgment for that amount was given first - that would defeat the award of exemplary damages. Only where settlement brings a first judgment in an amount different from the damages ultimately awarded in a later judgment in the same proceedings can any question of limiting recovery arise, and there is no reason to confine the plaintiff to a settlement amount which might well reflect the tortfeasor's impecuniosity rather than the plaintiff's loss. The plaintiff having sued both or all tortfeasors in the one proceedings, there will be no point in limiting recovery in order to discourage multiple proceedings, nor will recovery up to the higher amount of the later judgment necessarily be excessive recovery. Where the plaintiff brings successive proceedings, perhaps striving for a better result with experience, the limitation is appropriate, but not otherwise.

(b) Satisfied judgment as a bar 61 The submission that the satisfied judgment against Mr Whitehead barred further proceedings against the claimant was founded on passages in the judgments in Bryanston Finance Ltd v de Vries. It was accepted that, by force of s 5(1)(a) of the LR Act, the judgment against Mr Whitehead did not of itself bar the continuation of the proceedings against the claimant. The critical event was said to be satisfaction of the judgment by payment of the $250,000. 62 I have already set out the relevant passages from the judgments in Bryanston Finance Ltd v de Vries (paras 47, 50, 51 above). It is clear enough that their Lordships regarded satisfaction of a judgment obtained against one joint tortfeasor as an answer to a claim against the other or others. What is not so clear is why they were of that view. 63 For reasons which should already be apparent, but which may be briefly stated, I do not think it was because s 5(1)(b) confined recovery under a later judgment. Quite apart from whether s 5(1)(b) applies to judgments in the same proceedings, the assessment of and judgment for damages is different from recovery under a judgment. Their Lordships recognised the difference, and spoke of the satisfied judgment as precluding judgment.

64 Lawton LJ said that, if the consent judgment had been satisfied, the plaintiffs would have had their remedy and could get no more. This suggests the rule against double satisfaction. It will be recalled that there was no room at common law for the operation of the rule against double satisfaction following satisfaction of a judgment in proceedings against joint tortfeasors, as distinct from concurrent tortfeasors, because the judgment against one joint tortfeasor without more released the other or others. With the changes in the common law worked by the LRUK Act, the rule against double satisfaction could operate following satisfaction of a judgment when there were joint tortfeasors as well as when there were concurrent tortfeasors. This, in my opinion, was the unexpressed (or barely expressed) basis for their Lordships' view. 65 Even when given multiple causes of action against joint tortfeasors, a plaintiff sues to recover the one loss in the case of joint tortfeasors just as in the case of concurrent tortfeasors. Whether as a common law rule or by what would now be called equitable principles of unjust enrichment, the prevention of double satisfaction would be mandated in the former case just as much as in the latter. What was said by Lord Hope in Jameson v Central Electricity Generating Board (1999) 1 All ER 193 at 201-2, although in relation to concurrent tortfeasors, applies equally to joint tortfeasors - "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, Stracey v Urquhart (1930) AC 28 at 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." 66 So his Lordship later said, with specific reference to Bryanston Finance Ltd v de Vries and satisfaction of a judgment (at 203) - "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, 79 ER 62, Brinsmead v Harrison (1872) LR 7 CP 547 and Bryanston Finance Ltd v de Vries (1975) 2 All ER 609 at 617-618 and 624-625, (1975) QB 703 at 721 and 730 per Lord Denning MR 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 Ltd v de Vries (1975) 2 All ER 609 at 625, (1975) QB 703 at 730 per Lord Diplock. Section 6(1)(a) of the Law Reform (Married Women and Tortfeasors) Act 1935, which was replaced and extended by s 6 of the 1978 Act, 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." 67 If the judgment against Mr Whitehead had been for damages assessed by the court, as distinct from a consent judgment for an amount agreed as part of the settlement, by the operation of the rule against double satisfaction the opponents would be precluded from continuing the proceedings against the claimant. The critical question, then, is whether the position is the same when the judgment against Mr Whitehead was a consent judgment for an amount agreed as part of the settlement. 68 In principle, the rule against double satisfaction should not operate, or should not necessarily operate, where the satisfied judgment is not for damages assessed by the court. The rationale for the rule is that, having been fully compensated for his loss, the plaintiff can not get more. Damages assessed by the court are by definition, as it were, full compensation for the plaintiff's loss. But an amount agreed as or as part of a settlement is not necessarily full compensation for the plaintiff's loss. Unless the settlement is in truth a capitulation, of its nature it will involve compromise, so that the amount is unlikely to be full compensation for the claimed loss and its relationship to the actual loss will be speculative. Further, the settlement may well be affected by matters not material to the assessment of the actual loss, such as the defendant's impecuniosity. Still in principle, only if it is found as a fact that the settlement amount was received as full compensation for the plaintiff's loss should the rule against double satisfaction operate to bar the plaintiff from proceeding against another tortfeasor or other tortfeasors. 69 In Bryanston Finance Ltd v de Vries Lord Denning MR considered that the consent judgment against Lord Carbery was "a sufficient bar to any claim for damages against Mr de Vries" (at 724), saying that it would be presumed that Lord Carbery had satisfied the judgment unless Mr de Vries proved otherwise. Diplock LJ would have found a defence if the consent judgment had been satisfied, but was not prepared to proceed on a basis contrary to the fact as told to the court. Lawton LJ would also have found a defence if the consent judgment had been satisfied, and thought that the trial judge had been wrong to enquire into the plaintiffs' intention to release Mr de Vries. The case may stand against the position in principle outlined in the previous paragraph of these reasons, and favour the claimant in the present case. But it does not seem that any attention was given to a distinction between damages assessed by the court and an amount agreed as or as part of a settlement. 70 In Ruffino v Grace Bros Pty Ltd (1980) 1 NSWLR 732 Master Allen applied the rule against double satisfaction following consent judgments. The Master said (at 734) - "It is true that the amount of each of the judgments in the District Court was that arrived at by settlement, rather than by judicial determination. That does not matter. There is not a scintilla of evidence that the plaintiff received the payments otherwise than as full satisfaction; cf Carrigan v Duncan [1971 SLT 33]." 71 This is rather equivocal. Was there a finding of fact, in the absence of evidence to the contrary, that the settlement amounts were, or were intended by the plaintiff to be, full satisfaction? In Carrigan v Duncan 1971 SLT 33, there was an enquiry into the pursuer's intention in receiving a settlement amount for which judgment was given, see later in these reasons. 72 In Boyle v State Rail Authority (1997) 14 NSWCCR 374 the plaintiff settled with all but one of a number of concurrent tortfeasors and sought to continue against the remaining tortfeasor. It was assumed that judgment would be entered and there would be payment of the agreed amounts. Johns CCJ considered it necessary to examine "the circumstances surrounding the settlement", saying that there was a presumption that there had been full satisfaction but that "[w]ithout an inquiry into the facts, it is impossible for a court to say when an action is settled what sums short of the sum sued may or may not be appropriate as payment in full satisfaction of the claim" (at 379). He was not satisfied that the plaintiff had received the settlement amounts otherwise than as full compensation or satisfaction for his claim. 73 A related question was addressed in Jameson v Central Electricity Generating Board. It is directly relevant to the claimant's remaining argument, but the answer to the question is also of present assistance. 74 In Jameson v Central Electricity Generating Board the worker contracted mesothelioma from exposure to asbestos dust while working at the defendant's power stations. He sued his employer, and agreed to accept an amount "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". The settlement was given effect by a Tomlin order, so that the proceedings were stayed and no judgment was entered. The settlement amount was paid to the worker. Following the worker's death his executors sued the defendant on behalf of his widow under the Fatal Accidents Act 1976 (UK), and the defendant joined the employer as third party. One question was whether the settlement and payment of the settlement amount meant that the worker could not have sued the defendant, a concurrent tortfeasor with the employer. If he could not, his executors could not bring their proceedings. 75 The leading speech was that of Lord Hope, with which Lord Browne-Wilkinson and Lord Hoffmann agreed. Lord Clyde arrived at the same result as Lord Hope. Lord Lloyd delivered a dissenting speech. I have already set out some passages from the speech of Lord Hope. 76 After reference to the rule against doubt satisfaction, Lord Hope posed the presently material question (at 202) - "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."

77 After some observations on the reasoning in the court below, his Lordship then said (at 203) - "The critical question … 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."

78 There followed the passage with the citation of Bryanston Finance Ltd v de Vries set out earlier in these reasons (para 64), and his Lordship continued (at 203-4) - "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 had 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 (1940) 4 All ER 20 at 31, (1941) AC 1 at 21 per Viscount Simon LC and Kohnke v Karger (1951) 2 All ER 179 at 181, (1951) 2 KB 670 at 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 QC, had to examine in Carrigan v Duncan 1871 SLT (Sh Ct) 33." 79 His Lordship then discussed Carrigan v Duncan and cases considered in it, observing (at 204) that Carrigan v Duncan had been referred to and accepted as good authority in Ruffino v Grace Bros Pty Ltd and Boyle v State Rail Authority. The cases considered in Carrigan v Duncan were Dillon v Napier, Shanks & Bell (1893) 30 SLR 685, Crawford v Springfield Steel Co Ltd (18 July 1958, unreported) and Balfour v Archibald Baird & Sons Ltd 1959 SC 64. In those cases the court examined the pleadings and the terms of settlement (Carrigan v Duncan), the receipt and correspondence regarding settlement (Dillon v Napier, Shanks & Bell), the judge's decree (Crawford v Springfield Steel Co Ltd) or the pleadings (Balfour v Archibald Baird & Sons Ltd) in order to determine whether the pursuer had received full satisfaction. In Dillon v Napier, Shanks & Bell and Crawford v Springfield Steel Co Ltd it was found that he had not. In Dillon v Napier, Shanks & Bell the facts that the receipt was expressed to be in full satisfaction of the pursuer's claim against the settling tortfeasor and that the correspondence reserved his claims against the other tortfeasor were regarded as significant. 80 Lord Hope concluded (at 205-6) - "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 QC for the CEGB 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."

81 Although without the same extended discussion, Lord Clyde also recognised that a settlement does not necessarily mean full satisfaction. Perhaps differing in this respect from Lord Hope, his Lordship said that a settlement amount represented the value of the plaintiff's claim, in that it reflected the parties' assessment of the uncertainties in outcome: "What is paid is the present value of a possible future award" (at 212). Other matters may impinge upon a settlement, however, and while his Lordship said that 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 complete freedom for the future for the debtor", he added that "[p]articular circumstances and particular terms in the agreement may obviate such consequences …" (at 213). 82 The reasoning as to the operation of the rule against double satisfaction does not turn on whether the satisfaction was by payment of a judgment sum, on the one hand, or by payment of an agreed settlement amount, on the other hand. The formality of a judgment is of no significance to whether there will be double satisfaction. Accordingly, if there is to be an inquiry into whether the settlement satisfied the loss, there should be the enquiry even if the settlement was given effect by entry of judgment. 83 Although limiting the enquiry, Lord Hope accepted that whether receipt of the settlement amount enlivened the rule against double satisfaction depended on whether the settlement amount was received in full satisfaction of the tort. Inquiry by the court determining what it would have assessed as the plaintiff's damages was excluded. But where, from the terms of settlement or for some other reason within the inquiry, it was shown that the settlement amount was not received in full satisfaction of the tort, the settlement amount would not be full satisfaction for the purposes of the rule against double satisfaction, and there would be no bar to further proceedings against another tortfeasor or other tortfeasors. This recent discussion of the House of Lords is consistent with the principle earlier essayed. In my opinion, judgment for an agreed settlement amount does not necessarily bar the plaintiff from proceeding against a joint or concurrent tortfeasor. 84 It would be unfortunate if the position were otherwise. Settlement is to be encouraged, and a plaintiff who makes a reasonable settlement should be able to receive its fruits; he should not be inhibited in receiving the settlement amount by fear of the effect on maintaining a claim against another tortfeasor or other tortfeasors. The common law rule that the release of one joint tortfeasor released the other or others should not re-emerge as an uncritical operation of the rule against double satisfaction. (In Thompson v Australian Capital Television Pty Ltd the settlement amount seems to have been paid, see at 576, but it was not suggested that the plaintiff had received full compensation for his loss). It may be noted that the Restatement (Second) of Judgments (para 50) and of Torts (paras 885-6) both provide that an agreed payment to the plaintiff by one tortfeasor does not discharge the liability of another tortfeasor or other tortfeasors except to the extent that it is so agreed, and Prosser and Keeton on Torts, 5th Ed (1984) states (citations omitted) - "The only desirable rule would seem to be that a plaintiff should never be deprived of a cause of action against any wrongdoer when the plaintiff has neither intentionally surrendered the cause of action nor received substantially full compensation. If the statutes are taken into account, this is now the rule actually applied in most American jurisdictions. Where there has been such full satisfaction, or where it is agreed that the amount paid under the release is so received, no claim should remain as to any other tortfeasor; but these are questions of fact, and normally to be determined by the jury, where the amount of the claim is unliquidated. The release, however, may very well be taken as a prima facie acknowledgment of satisfaction, and the burden placed upon the plaintiff to prove that it is not." 85 In the present case it is not necessary to explore the burden of proof or the extent of permissible factual enquiry. The facts are there and do not go beyond the undoubtedly permissible. In my view, the opponents did not agree to the judgment for, or receive, the $250,000 in full satisfaction of their loss. Mr Whitehead was released in consideration of payment of $250,000, but the deed of release did not include language such as that in Jameson v Central Electricity Generating Board, to the effect that the $250,000 was in satisfaction of the opponents' proceedings. On the contrary, it made it plain that the opponents intended to continue the proceedings against the claimant. The $250,000 can not have been received in full satisfaction of the opponent's loss, because recovery of further compensation was contemplated. 86 In my opinion, therefore, the satisfied judgment does not preclude the opponents from maintaining the proceedings against the claimant. As they acknowledged, the opponents will have to give credit for the $250,000 in the event they obtain a judgment against the claimant. If they establish a loss greater than, and obtain a judgment for more than, $250,000, they will be entitled to recover the excess from the claimant.

(c) Settlement and satisfaction as a bar 87 The claimant's argument may be dealt with more shortly in the light of what has already been said. 88 Expressed to be a fall-back position, the argument was that, quite apart from the judgment, the settlement with Mr Whitehead and payment of the settlement amount barred the opponents from continuing the proceedings against the claimant because the opponents had received full satisfaction for their loss. Reliance was placed on Jameson v Central Electricity Generating Board. 89 This was again an invocation of the rule against double satisfaction, although putting aside the fact of a judgment in the opponents' favour. As has been seen, the fact of a judgment is not necessary to the operation of the rule. It must be asked whether the settlement amount was received as full compensation for the opponents' loss. As already stated, I do not think that the opponents agreed to the judgment for, or received, the $250,000 in full satisfaction of their loss. This argument takes the claimant no further than the second argument.

The result 90 The claimant's submissions should not be accepted, and the decision of the separate question will leave the opponents free to continue with the proceedings against him. 91 Seventeen years have passed since the conveyancing transaction. It is to be hoped that, with the question decided, the claimant and the opponents will give serious attention to their respective positions, and endeavour to resolve the proceedings; and if they cannot do so, that they will cause the proceedings to be brought to a hearing as soon as possible. 92 I propose the following orders. (1) Application for leave to appeal dismissed. (2) Order that it be separately decided whether the matters of defence in paras 16-22 of the defence filed on 11 June 1998 provide a defence to the opponents' claim against the claimant. (3) Decide the question in the negative. (4) Claimant pay the opponents' costs of the proceedings in the Court of Appeal. ____________

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