Brambles Constructions Pty Ltd v Helmers

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 [1] . 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" [1] . 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.

1. [1955] A.C. 169. 2. [1955] A.C., at p. 196.

In Harvey v. R. G. O'Dell Ltd.; Galway (Third Party) [2] , 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 [3] 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" [4] , 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" [5] .

1. [1958] 2 Q.B. 78. 2. [1955] A.C. 169. 3. [1958] 2 Q.B., at pp. 108, 109. 4. [1958] 2 Q.B., at p. 110.

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) [1] in which Lord Reid's views had been adopted and which had later been followed in Scanes v. Richards [2] 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 [1] and Seanes' Case [2] were wrongly decided. The appeal should be dismissed.

1. [1956] S.R. (N.S.W.) 127. 2. (1959) 82 W.N. (Pt 2) (N.S.W.) 362. 3. [1956] S.R. (N.S.W.) 127. 4. (1959) 82 W.N. (Pt 2) (N.S.W.) 362.