Legal updates and commentary
The appellant had filed a personal injury claim against the respondent as her employer. The respondent denied this saying another organization, TriStar, was her employer. The respondent had added TriStar as another defendant, against whom she obtained default judgment.
The Respondent then argued that the default judgment amounted to an election by the claimant, and prevented her pursuing the claim against the respondent. That submission was rejected at first instance, where the respondent was found liable with 20% contributory negligence on the part of the claimant. The Court of Appeal allowed the respondent’s appeal, but the Privy Council allowed the appeal in turn, restoring the order of the judge at first instance.
Key words and issues:
Whether obtaining default judgment against one defendant precludes pursuing a case against another, alternative liability, adoption of liability, factors determining whether a claimant has made an unequivocal election in a claim.
From the Court of Appeal of Trinidad & Tobago
Judgment delivered by Lord Kerr on May 10, 2012
Mrs. B was an emergency medical technician and ambulance driver. She was injured while lifting a heavy patient on a stretcher. She claimed against the South West Regional Health Authority (the respondent), which she said was her employer. The respondent denied liability and averred that her employer was TriStar Latin America Ltd. The appellant was granted leave to join TriStar as a defendant. TriStar did not enter an appearance to the writ and the appellant applied for, and was granted, judgment in default of appearance.
At trial the respondent did not call evidence and relied on the submissions of its counsel that the default judgment entered against Tri Star amounted to an election
by the appellant and that this precluded her from pursuing a claim against the
Jamadar J. held that the respondent was the appellant’s employer, and had not properly trained her, which amounted to breach of the contract of employment and of the duty of care to take all reasonable precautions for the appellant’s safety.
The judge said that as an interlocutory judgment, it was not a judgment “on the merits.” He said that the circumstances were relevant in that the respondent positively asserted that TriStar had been the appellant’s employer. He therefore gave permission to the appellant to withdraw the default judgment and to discontinue
her claim against TriStar.
Court of Appeal
A majority of the court held that the default judgment obtained against TriStar was a bar to a finding of liability against the respondent.
Lord Kerr explained the meaning of adoption of liability and when it applies.
“The ‘adoption’ of liability by a claimant means the decision to choose one possible defendant over another as the one against whom the case is to be made. This presupposes that an election is genuinely feasible, in other words, that a case against either defendant could properly be made and that a decision as to which is to be selected has been consciously taken.
As a matter of principle, where a claim against two possible defendants can be made and the espousal of a case against one defendant is necessarily inconsistent with the maintenance of a claim against a second defendant, a deliberate choice of one should preclude the continuance of a claim against the other.
“… where a claim against more than one defendant cannot be pursued either because the factual basis of the suit against one is incompatible with the factual foundation necessary to establish liability against the other or the legal bases of both claims cannot be consistently advanced, an election to pursue one basis of claim will preclude reliance on the other. By contrast, where there is no joint contract or relationship of principal and agent and the obligations are several, a judgment in an action against one is no bar to an action against another”
Did the obtaining of the default judgment amount to an election?
In determining whether an unequivocal election has been made the Privy Council said that the following must be considered:
1. The person making the election must have determined that he would follow one remedy out of two or more. This implies that it was decided that the selected remedy would be pursued at the expense of others that were available.
2. The choice must be communicated to the other side.
3. It must be communicated in a way that will lead the opposite party to believe that there has been a deliberate choice of one alternative over any other.
Lord Kerr said the circumstances in the instant case made it clear that the appellant had not made an unequivocal election, and was therefore not barred from proceeding against the respondent.
“Where, as is unquestionably the case here, the decision to obtain the default judgment could in no sense be regarded as an abandonment of the appellant’s primary basis of claim – that the respondent was her employer – one should be slow to regard that decision as an unequivocal election.
“While it would not be correct to suggest that obtaining a default judgment can never amount to an unequivocal election, the circumstance that such a judgment will almost certainly be obtained without any consideration of the merits is inescapably relevant to that question.”
Lord Kerr said that the appellant had not made a choice but instead was “keeping her options open.”
“There was nothing about the decision which partook of an unequivocal election. If all the surrounding facts and circumstances are taken into account and if one focuses on the true nature of the decision to obtain the default judgment and the circumstance that, as the judge found, the appellant did not have a genuine claim against the second defendant in the first place, it becomes indisputably clear that this was not the type of unambiguous choice that must be present before proceedings against the respondent could be considered to be barred.”
 UKPC 11
Privy Council Appeal No 0013 of 2011
Lord Hope, Lady Hale, Lord Brown, Lord Kerr and Lord Wilson