Brambles Constructions Pty Ltd v Helmers [1966] HCA 3; (1966) 114 CLR 213 (25 February 1966)

HIGH COURT OF AUSTRALIA

BRAMBLES CONSTRUCTIONS PTY. LTD. v. HELMERS [1966] HCA 3; (1966) 114 CLR 213

Action for Contribution

High Court of Australia
Barwick C.J.(1), McTiernan(2), Kitto(3), Windeyer(4) and Owen(5) JJ.

CATCHWORDS

Action for Contribution - Between tort-feasors - Judgment against tort-feasor - Claim from second tort-feasor - "who . . . would if sued . . . have been liable" - No temporal element involved in "if sued" - Law Reform (Miscellaneous Provisions) Act, 1946 (N.S.W.), s. 5 (1) (c)*.

HEARING

Sydney, 1965, December 3, 6; 1966, February 25. 25:2:1966
APPEAL from the Supreme Court of New South Wales.

DECISION

1966, February 25.
The following written judgments were delivered: -
BARWICK C.J. The demurrers in this case raise the proper construction of s. of New South Wales which is in the following terms:

"Where damage is suffered by any person as a result of a
tort . . .
(c) any tort-feasor liable in respect of the damage may
recover contribution from any other tort-feasor who is,
or would if sued have been, liable in respect of the same
damage, whether as a joint tort-feasor or otherwise . . . ". (at

p217)

2. The respondent suffered judgment at the hands of one of his employees for damages in respect of an injury to him caused by the respondent's negligence. During the course of the proceedings brought against him by the workman, the respondent served a third party notice on the appellant claiming that the appellant by its tortious conduct had caused or contributed to the damage in respect of which the respondent was being sued and claimed contribution pursuant to s. 5 (1) (c). At the date when the respondent was sued by his employee less than six years had elapsed since the occurrence of the damage in respect of which the workman sued. But at the date when the respondent gave his third party notice to the appellant, more than six years had elapsed from the date of the occurrence so that had the respondent's workman sued the appellant at the date the third party notice was given or any time subsequent thereto and the appellant had pleaded in that action the appropriate Statute of Limitations, the appellant would not have had judgment given against it in respect of the workman's claim. The demurrers raise the question whether this circumstance affords the appellant a good defence to the respondent's claim for contribution. (at p217)

3. The unsatisfactory nature of the drafting of s. 5 (1) (c) has been commented upon in earlier cases. The general purpose of the provision is clear enough. It would seem that the legislature desired on the one hand to expose all tort-feasors who had caused or contributed to the same damage to suit by the injured party notwithstanding the recovery of judgment against any of them; and that each tort-feasor who came under an obligation to pay damages should have contribution from every other tort-feasor who had caused or contributed to the same damage. But the draftsman chose words which have caused considerable uncertainty as to what precisely the legislature has enacted. (at p217)

4. The House of Lords in George Wimpey & Co. Ltd. v. British Overseas Airways Corporation (1955) AC 169 decided that a tort-feasor who had been sued by the injured party and had successfully defended the action, no matter on what ground, could not be required to pay any contribution to any other tort-feasor who suffered judgment at the hands of the injured party in respect of the same damage. He was neither a tort-feasor liable to pay damages nor a tort-feasor who had not been sued. (at p218)

5. This Court has decided that one of the methods by which a tort-feasor may demonstrate his liability in respect of the damage is by proof of the judgment which he has suffered at the hands of the injured party who has sued him in respect of the damage: Bitumen & Oil Refineries (Australia) Ltd. v. Commissioner for Government Transport [1955] HCA 1; (1955) 92 CLR 200 . (at p218)

6. The Supreme Court of New South Wales has decided, and in my respectful opinion correctly, that the claim of the tort-feasor for contribution is a cause of action apart from and independent of the cause of action which the injured party has or would have had against the tort-feasor from whom contribution is sought, and that the failure of the injured party to take formal steps such as the giving of notice of action to the tort-feasor from whom contribution is sought is an irrelevant circumstance in the action between the one tort-feasor and the other tort-feasor for contribution: Nickels v. Parks (1948) 49 SR (NSW) 124; 65 WN 273 . (at p218)

7. But a number of various opinions have been expressed obiter as to the meaning of the section in other respects. Amongst the obiter dicta of their Lordships in George Wimpey & Co. Ltd. v. British Overseas Airways Corporation (1955) AC 169 the view was expressed that time limitations which would have been available to the defendant in an action of tort by the injured party in respect of his injuries may enure for the benefit of that tort-feasor when sued by another tort-feasor for contribution. Having gone so far, it became necessary for those favouring such a view to relate the period of limitation available against the injured party in his action to some point of time in connexion with the tort-feasor's claim for contribution. This had led to a diversity of view out of which no conclusive judicial opinion has emerged. (at p218)

8. Because of these views expressed in the House of Lords in George Wimpey & Co. Ltd. v. British Overseas Airways Corporation (1955) AC 169 the Supreme Court of New South Wales in determining these demurrers held that the date as at which to apply the time limitations available against the workman in an action brought by him in the action for contribution is the date at which the injured party sued the claimant tort-feasor. At this date the action of the workman would not have been statute barred and therefore the demurrers succeeded. It is clear from the judgments of the Supreme Court that these reasons for that decision gave their Honours of the Supreme Court little satisfaction. (at p219)

9. In my opinion, there is no need to import into s. 5 (1) (c) any temporal element in this connexion. The effect of s. 5 (1) (c), in my opinion, is that a tort-feasor who has come under an enforceable obligation to pay money for the damage caused by his tortious act may successfully recover contribution from another tort-feasor who has also come under an obligation to pay money in respect of the same damage and he may also recover contribution from any other tort-feasor who, not having been sued by the injured party, had he been sued, would have been found to have caused or contributed to the same damage by a tortious act. It seems to me that there is no need whatever to specify any point of time as at which the expression "if sued" should be applied. It can be read "if sued at any time" which, of course, does not import any temporal element into the section. It was so held by Donovan J. in Morgan v. Ashmore, Benson, Pease & Co. Ltd. (1953) 1 WLR 418 and by McNair J. in Harvey v. R. G. O'Dell Ltd.; Galway (Third Party) (1958) 2 QB 78 and with their views I respectfully agree. (at p219)

10. This conclusion does not depend upon reading the word "liable" where firstly occurring in the paragraph of the subsection as exclusively denoting liability by judgment, nor does it depend upon adopting a view one way or the other as to whether the word "liable" where secondly occurring, means "liable by judgment". No doubt the use of the words "if sued" does tend towards the view that "liable" where secondly occurring means liable by judgment. That view commended itself to members of the House of Lords in George Wimpey & Co. Ltd. v. British Overseas Airways Corporation (1955) AC 169 but I find no need to resolve that question myself at this time and notwithstanding the observations of their Lordships, with all due respect, the question so far as I am concerned remains an open one. (at p219)

11. The obscurity of the word "liable" in the context of this section cries out for some legislative intervention in order to make it quite plain whether or not defences particular to the tort-feasor in an action by the injured party are to be available to him in an action by another tort-feasor for contribution. (at p220)

12. In my opinion, the Supreme Court was right in allowing the demurrers but, in my respectful opinion, it ought to have done so on the ground that upon its proper construction s. 5 (1) (c) does not make available to the defendant tort-feasor in an action for contribution any time limitation which would have been available to him in an action of tort brought against him by the injured party. In other words that the paragraph of the subsection, in this respect, should be read without the importation of any temporal element or as if the words "at any time" were present after the words "if sued". It follows that in my judgment both Seagrim v. Brown; Commissioner for Government Transport (Third Party) (1956) SR (NSW) 127; 73 WN 39 and Scanes v. Richards (1959) 82 WN (Pt 2) (NSW) 362 were incorrectly decided. (at p220)

13. In my opinion, the appeal should be dismissed with costs. (at p220)

McTIERNAN J. I am of the same opinion as the Chief Justice and agree that this appeal should be dismissed. (at p220)

KITTO J. In my opinion this appeal should be dismissed for the reasons appearing in the judgments of Donovan J. in Morgan v. Ashmore, Benson, Pease & Co. Ltd. (1953) 1 WLR 418 and McNair J. in Harvey v. R. G. O'Dell Ltd.; Galway (Third Party) (1958) 2 QB 78, at pp 108-110 . (at p220)

WINDEYER J. The rule of the Supreme Court seems to be in form mistaken if it be correctly copied in the appeal book. It records "judgment for the defendant on the second and fifth pleas", whereas what presumably is meant is judgment on demurrer as to those pleas - that is to say that the demurrer as to them was upheld, they being adjudged bad in substance. The question for us is whether that view is correct. In my opinion it is, but not for the reasons that the learned members of the Supreme Court gave, rather for those that they said they would have liked to give had they not felt that they should follow earlier decisions in that Court. (at p220)

2. The question depends upon the meaning of s. 5 (1) (c) of the Law Reform (Miscellaneous Provisions) Act, 1946 (N.S.W.). The purpose of this enactment seems plain. Its words are simple. "Any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued, have been liable in respect of the same damage". The question in the present case arises from a supposed need to read the words "if sued" as requiring that some exact point of time be fixed on, and the question then asked, Would the third party have been held liable in an action brought at that time? This proposition is put forward as the product of what Lord Reid said in George Wimpey & Co. Ltd. v. British Overseas Airways Corporation (1955) AC 169 . But an analysis of the speeches of their Lordships in that case does not yield any definite single principle capable of being applied in this case. We must go to the words of the Act. (at p221)

3. It is established that the reference to the right of a tort-feasor "liable in respect of damage" to recover contribution, is to a person whose liability as a tort-feasor has been ascertained, ordinarily by judgment, perhaps in some cases in some other way: Bitumen and Oil Refineries (Australia) Ltd. v. Commissioner for Government Transport [1955] HCA 1; (1955) 92 CLR 200 . A person thus found liable may seek relief from having to bear the whole burden. He can claim that any other, who by his wrongful act had a part with him in causing the damage that the plaintiff suffered, should contribute to the compensation which it has been adjudged he must pay. A person from whom contribution can be claimed is, as I read the Act, anyone who would had he been sued have been held liable for the same damage. The description, a tort-feasor who if sued would have been liable, denotes any person who would have been held liable in tort had he been sued in a competent court, by proper process, at a proper time and on evidence properly presented - that is anyone whose liability as a tort-feasor could have been ascertained in an action. I see no reason for limiting the denotation of the description by assuming that the words "if sued" refer to some particular point of time. It is enough that there was a time, before the liability of the defendant tort-feasor was actually ascertained, at which the plaintiff (the victim of the tort) could have successfully brought an action against some other person (the third party), either independently of or jointly with the defendant. The view taken by McNair J. in Harvey v. R. G. O'Dell Ltd.; Galway (Third Party) (1958) 2 QB 78 was, I respectfully think, correct. (at p221)

4. The result is that the Statute of Limitations does not begin to run in favour of a third party tort-feasor, against whom a claim for contribution is made, until after the liability of the original tort-feasor has been ascertained; for it is only then that the right to contribution arises. In several of the States and in New Zealand this result has been modified by amending Acts. For example in New Zealand the corresponding provision now reads "would if sued in time have been liable", and what "in time" there means is expressly stated by s. 14 of the Limitation Act 1950 (N.Z.). But the New South Wales enactment remains unaltered, although ten years ago this Court pointedly remarked on its need of reformation. (at p222)

5. What we are asked to do in this case is to limit the time within which a claim for contribution can be enforced by importing words into the statutory description of the persons against whom such a claim can be made. I do not think that the Act requires us to do this. (at p222)

6. It follows that in my opinion Seagrim v. Brown; Commissioner for Government Transport (Third Party) (1956) SR (NSW) 127 and Scanes v. Richards (1959) 82 WN (Pt 2) (NSW) 362 were incorrectly decided. (at p222)

7. For the reasons that I have given I would dismiss this appeal. (at p222)

OWEN J. This appeal raises a question as to the construction of s. 5 (1) of the New South Wales Law Reform (Miscellaneous Provisions) Act, 1946. That subsection provides that "where damage is suffered by any person as a result of a tort . . . (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; (c) any tort-feasor liable in respect of that damage may recover contribution from any other tort-feasor who is, or would if sued have been, liable in respect of the same damage, whether as a joint tort-feasor or otherwise . . .". (at p222)

2. The case is one in which the plaintiff, who had suffered injury, sued the respondent Helmers alleging that his injury was caused by Helmers' negligence. The respondent thereupon joined the appellant company as a third party, claiming contribution from it. In answer to two of the counts in the respondent's declaration of third party claim, the appellant pleaded that "at the time of the making by the defendant of the claim against the third party the third party was not liable to the plaintiff . . . for that the cause of action of the plaintiff against the third party . . . did not accrue within six years of the making by the defendant of the said claim". To these pleas the respondent demurred and the Supreme Court upheld the demurrer. (at p222)

3. The appellant's contention is that the words in s. 5 (1) (c) "who would if sued have been liable" mean "who would have been held liable if he had been sued by the injured plaintiff at the time when the third party claim was made" and if that is the correct way to construe the subsection, the pleas are good. The contention is based upon what was said by Lord Reid in George Wimpey & Co. Ltd. v. British Overseas Airways Corporation (1955) AC 169 . The facts in that case were that a person who was an employee of the Corporation was injured in a collision between a vehicle owned by the Corporation and a vehicle owned by the Company. More than twelve months after the accident he sued the Company, claiming damages for negligence. The Company served a third party notice on the Corporation. Later, however, the plaintiff joined the Corporation as a second defendant. Having been thus joined as a defendant it pleaded in answer to the plaintiff's claim that the latter's action against it was barred by the Limitation Act which fixed one year from the accrual of the cause of action as the period of limitation in the case of a claim against a public authority. This defence succeeded and judgment was given in favour of the Corporation. The plaintiff, however, recovered judgment against the Company which then sought to recover contribution from the Corporation. The relevant statutory provision which was under consideration corresponded with s. 5 (1) of the New South Wales Act. The majority of their Lordships (Viscount Simonds, Lord Reid and Lord Tucker) held that the Company was not entitled to recover contribution. Viscount Simonds and Lord Tucker were of opinion that there were only two categories of tort-feasors from whom contribution might be recovered under the statute: those who had been sued to judgment by the injured person and those who had not been sued by that person but who would have been held liable to him had he sued them. The Corporation had been sued by the injured plaintiff and had been held not to have been liable to him. It did not, therefore, fall into either category. Lord Reid made a different approach to the matter. He considered that the words had a temporal connotation. In deciding whether the tort-feasor from whom contribution was sought would, if sued by the injured person, have been held liable it was necessary to determine when it was that that hypothetical proceeding was to be presumed to have occurred. At one time liability might exist, at another it might not. His Lordship thought that the words referred either to the time when the tort-feasor claiming contribution was sued by the injured plaintiff or else when the claim for contribution was made. It was unnecessary for his Lordship to decide finally which of these alternative interpretations was the correct one because, whichever was adopted, the claim for contribution would on the facts of the case be barred by the lapse of time. Viscount Simonds' reasons for holding that the Corporation was not liable to make contribution made it unnecessary for him to discuss the point but he said that if it had been necessary to decide it he would have accepted Lord Reid's conclusion. Lord Porter and Lord Keith of Avonholm considered that the Company was entitled to contribution from the Corporation. Lord Keith of Avonholm was of opinion that the words "if sued" referred "to a time at which the words will be given efficacy in all cases, a time at which the question of liability for the damage can be the sole issue to the exclusion of all special defences" (1955) AC, at p 196 . From this I take it that his Lordship considered that a claim for contribution might be maintained successfully if the tort-feasor against whom it was made would have been held liable to the plaintiff at any time after the latter's cause of action came into existence. This, I think, was also Lord Porter's view. (at p224)

4. In Harvey v. R. G. O'Dell Ltd.; Galway (Third Party) (1958) 2 QB 78 , in an action heard by McNair J., the question arose directly for decision whether the words "who would if sued have been liable" contained a "temporal connotation referring to the time at which the hypothetical action must be assumed to have been brought". McNair J., after saying, rightly in my opinion, that in Wimpey's Case (1955) AC 169 the matter had not been finally determined, pointed out that the words of the subsection "plainly contemplate that the hypothetical action has been instituted at some time before the claim for contribution arose" (1958) 2 QB, at pp 108, 109 , that is to say before the injured plaintiff has obtained judgment against the party seeking contribution. He went on to say that, literally construed, the phrase "who would if sued have been liable" meant "who would if sued at any time have been liable". By this his Lordship clearly meant that if there was any time at which the third party would have been held liable if he had been sued by the injured plaintiff, then he could be called upon to make contribution. After referring to arguments which had pointed to various anomalies that might arise in whatever way the words were interpreted, he went on: "These arguments based upon inconvenience seem to me to be very equally balanced. Accordingly, I see no valid reason why the literal construction should not be adopted. This construction does not, as I think, involve reading in any words at all; on the other hand, it does avoid the necessity of reading in words of limitation which are not there" (1958) 2 QB, at p 110 . (at p224)

5. In the present case it is clear that their Honours in the Supreme Court would have agreed with the meaning which McNair J. attached to the words but felt constrained to follow an earlier decision of the Full Supreme Court in Seagrim v. Brown; Commissioner for Government Transport (Third Party) (1956) SR (NSW) 127 in which Lord Reid's views had been adopted and which had later been followed in Scanes v. Richards (1959) 82 WN (Pt 2) (NSW) 362 by a court of which I was a member. In neither of these cases was it necessary to choose which of the two constructions put forward by Lord Reid was the correct one since, on the facts, each would have produced the same result. In the present case, however, it was necessary for their Honours to choose which of Lord Reid's alternatives should be adopted. The conclusion to which they came was that if the provision was to be given a temporal connotation, the time to which regard must be had in determining whether the third party would have been liable to the plaintiff if he had been sued was the time when the plaintiff commenced his action against the defendant. Accordingly they held the appellant's pleas to be demurrable. I agree with their Honours' conclusion that the pleas do not answer the counts to which they were pleaded and I do so for the reasons which appealed to them but which they felt they must reject because of the two earlier decisions that I have mentioned. In my opinion, the construction which McNair J. placed upon the words is the correct one. It does no violence to the words of the section and the possible inconveniences and injustices that may result in particular cases do not seem to me to be any greater than those that might occur if some other interpretation be adopted. The result is then that if there was any time after the injured plaintiff's cause of action accrued when the third party, if he had been sued by that plaintiff, would have been held liable, he is a tort-feasor who may be required to make contribution to another tort-feasor against whom judgment has been given. It follows from what I have said that I think that Seagrim's Case (1956) SR (NSW) 127 and Seanes' Case (1959) 82 WN (Pt 2) (NSW) 362 were wrongly decided. The appeal should be dismissed. (at p225)

ORDER

Appeal dismissed with costs.