Rukhmin Balgobin v South West Regional Health Authority (Trinidad and Tobago)

A default judgment against one of several defendants does not automatically bar proceedings against another. Merger prevents a second action on the same cause of action. Election prevents inconsistent alternative claims where the claimant deliberately chooses one viable basis of liability at the expense of another. An unequivocal election requires a determined choice, communicated so as to convey deliberate preference. A default judgment obtained without consideration of the merits must be scrutinised carefully. Where it was obtained as a procedural convenience, without abandoning the primary claim, it does not amount to an election.

Ms Balgobin, an emergency medical technician and ambulance driver, was injured while lifting a patient. She sued the South West Regional Health Authority, which denied being her employer and identified TriStar Latin America Ltd as the employer. After TriStar failed to appear, she obtained judgment in default against it. The trial judge found that the Authority was her employer, entered judgment for 80% of her damages, and permitted withdrawal of the default judgment. The Court of Appeal, by majority, held that the default judgment barred liability against the Authority; Smith JA dissented. The issue before the Board was whether obtaining the default judgment constituted an unequivocal election or merged the cause of action so as to bar the claim against the Authority.

Lord Kerr, delivering the judgment of the Board, allowed the appeal.

1. Merger and separate obligations. Merger bars a later action on the same cause of action after judgment, as explained in King v Hoare (1844) 13 M & W 494. It does not bar a separate action where the defendants’ obligations are several and there is no joint contract or relationship of principal and agent. The Board applied Isaacs & Sons v Salbstein [1916] 2 KB 139 to this distinction.
2. Alternative liability and election. The principle in Morel Brothers & Co Ltd v Earl of Westmorland [1904] AC 11, affirming the Court of Appeal decision at [1903] 1 KB 64, applies where the claimant’s factual or legal bases of liability are mutually contradictory. A deliberate choice of one basis precludes reliance on the other. Scarf v Jardine (1882) 7 App Cas 345 illustrates genuine alternative liability.
3. Unequivocal election. The claimant must determine to pursue one remedy at the expense of others, communicate the choice to the opposing party, and communicate it in a way that conveys deliberate preference. Full knowledge does not require full appreciation of the legal consequences: United Australia Ltd v Barclays Bank Ltd [1941] AC 1.
4. Default judgments. A default judgment can create an estoppel, but its precise effect must be carefully examined because it ordinarily involves no consideration of the merits: Kok Hoong v Leong Cheong Kweng Mines Ltd [1964] AC 993. The surrounding circumstances identified in Pendleton v Westwater and Swingware Ltd [2001] EWCA Civ 1841 were relevant.
5. Application. The judgment against TriStar was obtained after the Authority had asserted that TriStar was the employer. It was a sensible procedural means of dealing with a non-appearing defendant, not a deliberate abandonment of the claim against the Authority. The situation was analogous to Westminster City Council v Reema Construction Ltd (No 1) (1990) 24 Con LR 16. The default judgment was not an unequivocal election and did not bar the claim. It was unnecessary to set it aside. The order of Jamadar J was restored, with costs applications to be made in writing within 28 days.

• Privy Council: appeal allowed; the default judgment was no bar to the claim against the Authority, and the trial judge’s order was restored.
• Court of Appeal of the Republic of Trinidad and Tobago: by majority, Kangaloo JA and Stollmeyer JA held that the default judgment barred a finding of liability against the Authority. Smith JA dissented. No citation is stated in the judgment.
• Trial court: Jamadar J found that the Authority was the appellant’s employer, found breach of contract and duty of care, reduced damages by 20% for contributory negligence, and permitted withdrawal of the default judgment against TriStar.