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damages which might conceivably ruin the servant
completely. The underwriters would then have
received the premium on the policy from the master,
and the damages which they had paid on the master's
behalf from the servant.
I cannot but think that,
when the premium on
the policy was
fixed,
it was
fixed without any
thought of obtain
ing
damages
from
the
servant.
This
view
some support receives from the fact that until
recently no such action as the present one appears
in the law reports.
Condition 2 of the policy, which I have recited,
gives to the underwriters a contractual right as there
set out, and in those circumstances the underwriters
do not need to rely on their rights, other than the
contractual rights under the policy.
In my opinion, the plaintiffs are not precluded
from maintaining their action in this case against
the defendant merely because in law they are re
garded as joint tortfeasors, so that the third party
can sue them as being vicariously responsible for
the acts of their servant. This question relating to
joint tortfeasors loomed large in the discussion of
the rights of the plaintiffs in this case, but the
question whether it was competent to the plaintiffs
to bring an action founded in contract was scarcely
.more than mentioned.
I do not think that the damages claimed are too
remote;
they are the direct consequence of the
negligence of the defendant, and were caused by
the breach of contract to which I referred earlier.
I cannot think that, because the plaintiffs were in
sured in this case, that operated as a complete
immunity to the defendant from being sued when
his own breach of contract had occasioned the
damage; and equally I cannot think that there
was any implied term of the contract of service
which would place on the plaintiffs the duty of
insuring the defendant against liability for injuries
such as arose in this case when the defendant's
father, a fellow servant, was injured in the way
described.
Per Romer, L.J. :
There is no doubt that these
actions have been brought at the instance of the
underwriters to the employers' liability policy which
is held by the plaintiffs, and that the underwriters
have at all times been and still are in control of the
actions. This fact has given rise to the first pre
liminary objection which was taken by the defendant
before the learned judge and which was relied on
when the matter came on before us on appeal from
the order made in the first action. This objection
is that the underwriters are suing by sub-rogation to
the plaintiffs and that they are precluded from doing
so by the fact that they had not paid anything to
the defendant's father at the date when the writ in
this action was issued.
I will assume that this
objection is open to the defendant notwithstanding
that the apparent plaintiffs are the Romford Ice and
Cold Storage Co., Ltd., and that, if the action failed,
the defendant would have no rights whatever against
the underwriters, but he would have, against the
plaintiffs, all the rights and remedies which our
procedural law gives
to a successful defendant
against plaintiffs, whose action is dismissed with
costs. Even so, it does not appear to me that the
objection should prevail. The underwriters admit
tedly had not paid any money to the defendant's
father when
these proceedings were
instituted,
because the liability of the plaintiffs to this employee
had not then been established ; and accordingly they
could not claim to be sub-rogated to such rights as
the plaintiffs possess against the present defendant.
It is not necessary, however, for the underwriters
to depend in any way on the principle of sub
rogation, because they have contractual right under
the policy itself to sue in the plaintiffs' name, and
so far as I know they have brought this action in
pursuance of that right and of that alone.
In my
opinion,
therefore,
this
preliminary
objection
fails.
If A makes an agreement (whether express or
implied) with B and breaks it, then normally A can
be sued by B for such damages as have naturally
flowed from the breach; and I can see no reason
why B should be deprived of this remedy either on
the ground that A is his servant or on the ground
that A's promise of is a particular character, namely,
to perform his work with reasonable care and
skill.
It was said that the damages claimed were too
remote. I do not think they were, for they flowed
directly from the defendant's breach ofhis obligation,
to carry out his duties with reasonable care and skill.
It was alternatively contended that it was on implied
term of the defendant's employment that he should
not be sued by the plaintiffs for damage arising from
his negligence if they were insured in respect of
such damage. There is no question but that a man
can sue a servant who, by his negligence, causes
damage to the master.
(Romford Ice Co., Ltd.
v.
Lister—(1955) 3
All
E.R. 460.)
The House of Lords (Lords Simonds, Morton,
Radcliffe, Tucker and Somervell) affirmed the de
cision of the majority of the Court of Appeal, but
Lord Radcliffe and Lord Somervell were of opinion
that the respondents were not entitled to recover
any damages from the appellant the amount for
which they had been made liable to his father.
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