The Gazette 1955-58

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. 94

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